Plaintiff may litigate anti-white bias in the workplace influenced by the City's diversity training

The Court of Appeals has held that a white woman who was subjected to racial comments arising from her public employer's diversity training may sue the New York City Department of Education for a hostile work environment. This is among the few cases where a white plaintiff has enough evidence to proceed on such a claim.

The case is Chislett v. New York City Department of Education, decided on September 25. Plaintiff, an educator with the Department of Education, attended mandatory implicit bias training, which focused on white supremacy and related topics. The Court says a rational jury may find that "racist comments were expressed during bias trainings" and that this bias spilled into everyday workplace interactions as "employees expressed terminology from the trainings at [plaintiff]." Viewing the record in plaintiff's favor (a necessary process in reviewing the propriety of summary judgment), the Court notes that, following this training, coworkers criticized her by stating, i.e., she was making "race-based judgments," could "not be trusted," benefited from white privilege, and that she was racist and "white and fragile." 

The district court rejected plaintiff's racial harassment claim, but the Court of Appeals finds she has a case. The Second Circuit (Leval, Nardini and Bianco) holds the evidence supports a finding that the Department has a custom or policy of racial harassment against white employees, sufficient to support a Monell claim, because the racially hostile work environment may have been "the product of a municipal policy." This is a unique holding, as "policy and practice" claims often fail under the stringent legal standards articulated by the Supreme Court. The pattern of racist comments that followed the training permits the finding that this took place because of the training sessions. While some of the anti-white comments were directed toward other employees, the Court notes that "discriminatory conduct not directly targeted at or spoken to an individual but purposely taking place in her presence can nevertheless transform her work environment into a hostile or abusive one." 

While the conduct of implicit bias trainings is not per se racist, the Court says, "What matters here is the way the trainings were conducted," and employers risk liability "when employment trainings discuss any race with a constant drumbeat of essentialist, deterministic and negative language about a particular race." This is the first time the Second Circuit has said this, borrowing language from a district court ruling in Pennsylvania. When the Court of Appeals relies on an out-of-Circuit district court ruling, you know the Court means business about this issue. What hurts the City in this case was its failure to remedy the problem when plaintiff lodged a complaint about the offensive workplace statements, often dismissing her concerns outright, and the "tolerant awareness" of supervisors, suggesting they were "acquiescing in such abuse."

While the city argued that "many of the identified statements should not form the basis of a hostile work environment claim because they occurred in the context of discussions about combating discrimination," the Court says "the fact that the purpose of the sessions was to combat race discrimination does not excuse the alleged presence of race discrimination in the conduct of the sessions." At the same time, the Court says "we do not suggest that calling someone racist by itself constitutes racial discrimination or forms the basis of a hostile work environment claim."

Italian-American organization cannot sue New Haven to retain Columbus statue owned by the City

The City of New Haven removed a statue of Christopher Columbus from Wooster Square Park, a prominent public space. The plaintiff is an Italian-American organization that wants the statue to return to the public square. They sue the City under Section 1983, asserting the statue was removed in violation of due process. The plaintiff loses.

The case is Italian-American Defense League v. City of New Haven, a summary order issued on September 25. While Columbus was long viewed as a hero for "discovering America" in 1492, historians over the years have raised serious questions about his ill-treatment of the Native Americans who got there first. The removal of these statues, and renaming Columbas Day as Indigenous Peoples Day, is the product of the revised focus on Columbus. That's the backdrop for this case.

Plaintiff gets a minor victory along the way. The Second Circuit (Menashi, Cabranes and Livingston) says the organization has associational standing to bring this lawsuit, as it represents the interests of the individuals who object to the statue's removal. The organization "represented that several of its members live near Wooster Square Park, the former site of the Christopher Columbus statue. The complaint described the neighborhood around Wooster Square Park as 'home to many Italian-Americans who have chosen to live there so as to share their lives with others of similar[] heritage.'" The Court adds that "these residents 'place a unique value on living in the vicinity because it is known to many as 'Little Italy' and hosts 'annual festivals and events celebrating Italian-American heritage.' These allegations gave rise to the reasonable inference that many of the residents derived aesthetic and recreational benefits from regularly viewing a statue that 'was intended to signal the contributions Italian-Americans had made to American culture and society.'” These facts give the organization standing to bring this case. 

But plaintiff loses the case on the merits. That's because, to prevail under the Due Process Clause, you have to show the government denied you a liberty or property interest without due process, usually in the form of a fair hearing or a chance to be heard.

There is no such liberty or property interest in this case. The Supreme Court has given "liberty" and "property" precise definitions. Here, the Court says, while "the plaintiffs alleged a 'property interest in the historical preservation of Wooster Square Park, its buildings, structures and features,'" New Haven’s Charter gives the City the power to manage, regulate and control all City property,” and “[t]he Columbus statue is property of the City of New Haven.” Since the organization does not own the statute, it lacks any property interest in its continued placement in the park. In other words, "The plaintiffs do not have a property interest in a statue that belongs to the City. Nor do the plaintiffs have a 'liberty' interest in the statue remaining in the neighborhood."

New trial for inmate after jury ruled against him

The best way to get a new trial if the jury rules against you is to argue that the trial court got the jury charge wrong. A good deal of the trial court's decisionmaking at trial is difficult to challenge on appeal, as the judge had discretion to admit or deny certain evidence. But the judge has no authority to instruct the jury improperly. We learn that lesson in this case.

The case is Sloley v. Vanbremer, a summary order issued on September 26. This case alleges that correction officers subjected plaintiff to a body cavity search in violation of the Constitution. The trial court initially dismissed the case on summary judgment, but the Second Circuit reinstated case on the basis that the jury could find the officers conducted the highly-intrusive cavity search without reasonable suspicion. The citation for that ruling is 945 F.3d 30 (2d Cir. 2019).

While other searches, such as one that does not involve cavity searches, do not carry the reasonable suspicion standard, this heightened standard applies to cavity searches because they are more intrusive. Under the reasonable suspicion standard, the officer needs "reason to believe, based on specific and articulable facts, taken together with rational inferences from those facts, that an arrestee is secreting contraband inside a body cavity." That language derives from the earlier appeal in this case.

Since plaintiff won the first appeal, the case went to trial. The jury ruled against plaintiff. But the case is not over! When the trial court charged the jury, it said that "the relevant question is do the circumstances of plaintiff's arrest support a reasonable suspicion that he was hiding contraband in or on his person?" The "in or on" language is the problem here. The "on" component of the jury charge allows the jury to rule against plaintiff if it found the officer had reasonable suspicion to believe that plaintiff had drugs on his person rather than in his body cavity. If the jury interpreted the charge that way, then it could have determined that the cavity search was OK even if the officer only thought that plaintiff had drugs on his person instead of inside a body cavity. 

Since the jury charge was incorrect, plaintiff gets a new trial, as the plaintiff may have lost the case under an incorrect legal principle. The defendants argued that, notwithstanding this charge, the charge overall was OK because the jury elsewhere in the charge gave the jury a correct statement of the law. But the Court of Appeals (Merriam, Parker and Newman) notes that the Second Circuit has long held that a bad charge is not cured by the correct standard elsewhere in the charge. And, while the verdict sheet correctly stated the legal principle guiding this case, that does not cure the error in the jury charge, either, since language in the charge and not the verdict sheet controls this inquiry. As the Second Circuit states, "the jury can only read the verdict form in the light of the explicit instructions the court has given."

Sexual harassment claim is reinstated on appeal

The Court of Appeals has reinstated a hostile work environment claim asserted by a small-town police officer who claims her superior touched and groped her in a manner that violated Title VII and state law. 

The case is Arnold v. Town of Camillus, a summary order issued on September 23. I briefed and argued the appeal. A.J. Bosman, Esq., handled the case in the district court and assisted on appeal. 

On the summary judgment motion, the Northern District of New York held that plaintiff did not establish that the hostile work environment was "severe or pervasive" because it did not happen frequently enough. But as the Second Circuit has held over the years, it is enough for plaintiffs to allege the harassment took place on a regular basis, even if the plaintiff does not provide details about time and place. That is what happened here, and that claim is revived on appeal. The Court summarizes the evidence as follows:

 

For example, she offered testimony that “throughout the course of [her] career at the Camillus Police Department,” Defendant James Nightingale, a more senior police officer, engaged over an extended period in repeated “unwelcome and offensive touching of [her] body, including [her] arms, shoulders, and back” and, on one occasion, “above [her] groin,” even though it was “unnecessary” to perform his job duties. In addition, male officers testified that they had “never had [Nightingale] touch [them] in that way nor seen him touch other men in that fashion.” Male colleagues also observed Nightingale “repeatedly touch” Arnold, “stand directly over her while she was on the computer or sitting in a chair,” “plac[e] his hand on her back or shoulder,” and “touch[] her with his hands as he would walk by her.” Arnold also testified that Nightingale’s “conduct was frequent and noticeable enough that it became a running joke” within the police department, and that “the incidents began long before” she began documenting them in 2017.

While plaintiff did provide a summary of the harassment when she complained to the Police Chief about Nightingale in 2017, she did not list all the incidents. That omission, however, does not mean the jury cannot credit plaintiff's testimony about the other episodes. This may raise a credibility issue for trial, but it cannot be used against plaintiff on summary judgment if she details them in an affidavit in opposition to dismissal.

 

Plaintiff also asserted a disparate treatment claim, asserting that Nightingale did not sent her to enough training or allow her to instruct fellow officers, and that he did so because of her gender. The Court of Appeals affirmed summary judgment on this claim because plaintiff  could not show these personnel decisions were gender based. While the harasser was the same individual who assigned the training and instruction, and plaintiff heard him say that "women shouldn't be cops," the Court of Appeals said without significant discussion that this was not enough to prove the training and instruction denials were based on sex discrimination. The Court reasons, "The statement, offensive though it is, is not connected to any “workplace policy, practice, or decision” Nightingale made about Arnold’s training or instructional opportunities." For this principle, the Court cites Young v. United Parcel Serv., Inc., 575 U.S. 206, 213 (2015). 

 

It is unclear to me how Young supports this holding, In Young, the Supreme Court stated that "We have also made clear that a plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas." I guess the Second Circuit interprets this language to mean that, to support a finding that Nightingale denied plaintiff certain workplace benefits because of sex, he had to say "women shouldn't be cops" in the precise context of his decision to deny her training and instructional opportunities. I ask you this: would the jury require such a connection in order to find that Nightingale's comment means he denied plaintiff these benefits because of her sex? If the jury believes plaintiff's testimony that Nightingale thinks women should not be police officers, and it further finds that he prevented plaintiff from attending certain training sessions, would it be too much for the jury to say that sex discrimination motivated these personnel decisions?

Various gun control laws in New York do not violate the Constitution

This gun-rights litigation challenges New York's gun control law and its application in Suffolk County. The Court of Appeals finds the "good moral character" requirement for owning a gun is consistent with the Second Amendment. It also holds that New York can legally require permit-seekers to have an in-person meeting with the permit-giver to submit certain information, except that the requirement forcing applicants to list their social media accounts is likely unconstitutional. The requirement that applicants complete 18 hours of firearms training is also likely legal, and the plaintiffs will most likely lose their arguments that Suffolk County takes too long in issuing permits. 

The case is Giambalvo v. Suffolk County, issued on September 12. This lengthy ruling issued one week prior to another gun-rights case also decided by the Second Circuit, the summary of which you can all read about at this link. Both rulings were written by Judge Bianco, who is now the unofficial expert on the Second Amendment in New York. 

 

Plaintiff sought a preliminary injunction against enforcement of these rules, which requires a showing that they are likely to win the case and will suffer irreparable harm without an early ruling in their favor. The loss of constitutional rights usually creates irreparable harm, so these cases usually turn on whether the plaintiffs can win the case when the litigation is over.

Ever since the Supreme Court issued a new constitutional framework in New York State Rifle and Pistol Ass'n v. Bruen (2002), gun rights cases have become more complex. In a nutshell, gun control laws violate the Second Amendment unless the challenged law is consistent with the laws in place when the Second Amendment was enacted in 1791 and the Fourteenth Amendment was enacted in 1868. Not an easy task, as judges have to review older statutes, court rulings, and scholarship going back over 100 years. 

Here's what the Court of Appeals (Bianco, Parker and Rakoff [D.J.]) did in this case, nearly two years after oral argument (again, owing to the complexity of these issues):

1. The good moral character requirement is likely constitutional. The Court of Appeals has already held as such in Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), and this panel reaffirms that reasoning in this case. The family-relations disclosure requirement was also upheld in Antonyuk, as was a requirement that gun permit seekers disclose other personal information. But that case said the social media requirement was likely unconstitutional, so that holding applies to this case.

2. New York also requires permit-seekers to disclose character references. Prior cases have said this requirement is legal. One case said that colonial-era gun rules had a reputation-based character reference requirement. You don't want an unsavory character to be running around with a gun, do you? This challenge therefore fails.

3. What about the requirement that permit-seekers have an in-person review in order to obtain a concealed carry license? Similar regulations were on the books many years ago, from the colonial era to the Reconstruction era, in various states. You want a face-to-face meeting with the gun owner to size him up and ensure he will not be shooting his gun off like Quick Draw McGraw. That makes this law constitutional.

4. We got ourselves a firearms training requirement, as well. The Supreme Court, in its seminal decision, District of Columbia v. Heller (2008), which said for the first time that the Second Amendment protects the right to individual gun ownership, said such training requirements are legal. We want gun owners to know what they are doing. Since then, other courts have held the same. The 18-hour training requirement is presumptively legal under the Second Amendment.

5. Finally, plaintiffs allege that Suffolk County takes its sweet time in issuing gun permits. While the Supreme Court has said that "lengthy wait times" may have constitutional implications, plaintiffs have no right under the Second Amendment to require that the county rule on such permits within 30 days. This qualifies as the kind of short delay that the Constitution will tolerate. 

New York's gun control law does not violate the Second Amendment

The latest round of Second Amendment litigation in the Second Circuit holds that, consistent with the Second Amendment, New York can (1) prohibit carrying firearms in "sensitive locations" like the New York City subway system, the Metro-North Railroad, and Times Square, (2) prohibit "open carry," and (3) require that a state concealed-carry license holder receive a New York City-specific permit to carry a gun in New York City. These bans are most likely legal and can withstand a constitutional challenge.

The case is Brey v. City of New York, issued on September 19. The plaintiffs sought to preliminary enjoin enforcement of these gun restrictions. To win, they have to navigate the Supreme Court's ruling in New York State Rifle and Pistol Ass'n v. Bruen, issued in 2022 and which holds that gun laws violate the Second Amendment unless the government can show the current restrictions bear some relationship with the gun restrictions in place when the Second Amendment was enacted in 1791 (when the Bill of Rights were enacted). We also consider the legal landscape in 1868, when the Fourteenth Amendment, which incorporates the Bill of Rights against the states was enacted. This framework, new to constitutional law and incorporating classic "original intent" principles of constitutional interpretation, forces federal judges to master the history of gun laws, not an easy task since we are reaching back well over 100 years to solve the problems of today. 

1. On the "sensitive location" gun restrictions, the Court of Appeals (Sack, Raggin and Bianco) finds that this nation's historical tradition of gun laws has regulated firearms in crowded places. This goes back centuries, and it therefore applies to Times Square (with 300,000 visitors daily and hundreds of restaurants and other attractions, like Broadway), the subways and the railroad, where we are often packed in like sardines. Older firearms laws barred guns in enclosed crowded spaces, and nothing says enclosed crowded spaces like the New York City subway and the Metro-North Railroad. 

2. The open carry ban in New York, requiring that we conceal our guns in public, is consistent with language in Bruen stating that modern Anglo-American history has subjected us to rules guiding "the manner of carry," open carry in particular. 

3. As for the requirement that gun owners get a special city permit, even assuming this issue is properly before the Court, which can only permit a facial challenge to a statute if the law is unconstitutional in all its applications, plaintiffs cannot enjoin its enforcement because "we have a strong historical tradition of allowing localities to implement their own, often stricter, regulatory measures within their jurisdictions." Like the rest of this court ruling, the opinion cites older statutes, court rulings, and scholarship such as law review articles. 

 

One week after the Court of Appeals issued this case, it handed down another Second Amendment that for the most part upheld other portions of New York's gun control laws. And you can read all about that case tomorrow. 

Non-lawyers may not be able to give legal advice in debt-collection cases

 As the Second Circuit puts it in this case, debt-collection lawsuits "are one of the most common lawsuits in New York," in which credit card and other lenders sue people for not paying their bills. Yet, the vast majority of these cases result in a default judgment for the money-people, as the defendants do not show up in court. All the while, the Court says, many of these cases are actually baseless and the defendants don't owe anyone anything. The plaintiff organization in this case is trying to help debt-defendants fight these cases in court, but with one catch: the plaintiff is not a lawyer and would assist clients as laypeople, not lawyers. Plaintiff thus challenges New York's prohibition against the unauthorized practice of law in this context. While the trial court ruled in plaintiff's favor, that victory is now in jeopardy as a result of this court ruling. The law may in fact be constitutional, and the trial court will have to take on this issue once more.

The case is Upsolve v. James, issued on September 9. If you want to give legal advice in New York, you have to go to law school and pass the bar. The plaintiff-organization in this case is trying to get around that by advising debt-collection defendants on how to fight back against credit card and related lawsuits to recover unpaid debt. Particularly, they want to advise pro se New Yorkers on how to complete the state's check-the-box form for answering debt-collection lawsuits. 

Plaintiffs frame this lawsuit under the First Amendment, claiming their advice to pro se litigants in these cases is free speech. The Court of Appeals denies the plaintiffs' argument and says that while plaintiff is technically engaging in speech, the speech regulation is content-neutral and may be legal under the more government-friendly standard that the trial court must apply to the case on remand.

As I noted, these lawsuits are commonplace and often meritless, but when the defendant fails to show up in court, the debt-collectors win the case and the defendants' credit rating collapses and they suffer wage-garnishment and other consequences. The plaintiff is a "justice advocate" in the Bronx who has seen  his community suffer the consequences these debt-collection lawsuits, as they don't understand their rights and cannot afford to hire a lawyer. While plaintiff is not a lawyer, he has probably mastered this process to ensure that his "clients" are not getting the shaft.

In this preliminary injunction posture, where the plaintiffs have to show they are likely to prevail on the merits and therefore deserve a favorable court order right now, the Second Circuit (Sullivan, Leval and Merriam) agrees that the law is a speech restriction. Legal advice is free speech. Courts have said this over and over. 

But the First Amendment does not advance absolute speech rights. There are limits. Otherwise, George Carlin's "seven dirty words" would be broadcast on network television every night. Even if a statute regulates speech, it is legal unless it regulates speech based on content, i.e., it discriminates on the basis of what someone wants to say. If the law is content-neutral, then the law does not violate the First Amendment unless the government can advance a darn good reason for the speech restriction. 

Since the statute regulating the unauthorized practice of law applies to any individual practicing law, regardless of the type of law he wishes to practice, whether it involves debt-collection or personal injury, this facial-neutrality may be consistent with the First Amendment. But we are not 100% sure of this at the moment, as the case returns to the district court to apply "intermediate scrutiny" (more favorable to the government in these cases) than "strict scrutiny" (almost a sure win for the First Amendment plaintiffs). Since the district court wrongly applied strict scrutiny and not intermediate scrutiny, the district court must apply this new analysis to the case.