Plaintiff loses retaliation case on appeal

A plaintiff can establish a prima facie case of retaliation and still lose at summary judgment. That is what happened to an Office of Mental Health employee whose discrimination complaint was followed by a series of disciplinary actions. The plaintiff loses because defendant had documented her performance problems before she ever filed the complaint.

The case is Rahman v. Carlin, a summary order issued on October 6. Plaintiff worked for OMH. On April 29, 2019, she filed complaints with the State Division of Human Rights and the EEOC, alleging discrimination over her failure to receive a promotion and equal pay. She claimed the discrimination was based on her race, color, and national origin. She later sued, claiming defendants retaliated against her because she filed that complaint.

The district court granted defendants summary judgment. The Second Circuit (Jacobs, Merriam and Schwartz) affirms. Plaintiff identified several allegedly retaliatory actions, including two interrogations, paid administrative leave, a disciplinary notice, and an unsatisfactory performance evaluation. She also argued that earlier performance evaluations were also adverse actions. The Second Circuit stated that, under Section 1983 plaintiff must show a materially adverse employment action, while the NYSHRL reaches conduct reasonably likely to deter someone from opposing discrimination. More on these dueling legal standards at the end of this blog post.

Plaintiff loses because her performance problems predated her discrimination complaint. The record showed concerns about her work performance before April 29, 2019. An April 17 email discussed concerns about her knowledge of workplace policies, failure to check email, responsiveness, and interactions with a supervisor. Later evaluations and disciplinary measures continued to cite documented performance problems. Nor could plaintiff identify any comparators who were treated differently. And the challenged actions were not sufficiently close in time to her April 2019 complaint to support an inference of retaliation.

The Court says the retaliation test under Section 1983 requires a showing that plaintiff suffered a material adverse action, in contrast to state law's dissuasion test. Is that correct? The Second Circuit cites Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023), for this proposition, but Buon was a disparate treatment case, not a retaliation case. Disparate treatment cases apply a different standard, one that is less favorable for plaintiffs than the dissuasion test in retaliation cases. What is more, Buon predates the Supreme Court's ruling in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), which rejected the materiality test applied in Buon for a more forgiving test, requiring that plaintiffs in disparate treatment cases only show "some harm," not material or significant harm. The analysis in Buon is outdated. This apparent error would not have made a difference in the outcome of this appeal, as the Court of Appeals also rejected plaintiff's case under the dissuasion test under state law. 

Plaintiff lose political affiliation case

The Court of Appeals holds that three Program Integrity Officers who worked for the Orange County Sheriff cannot sue for First Amendment/political affiliation retaliation because they held political jobs, which gave the Sheriff discretion to replace them after they supported the Sheriff's political opponent in the primary election.

The case is Cowart v. Arteta, a summary order issued on October 4. This case highlights an issue that I've raised as a CLE lecturer over the years: that much of constitutional law is judge-made law, and the judges love their multi-part tests, again, created by the courts, in working through the constitutional puzzle. The First Amendment protects the right of speech and political association, but its plain language does not help the courts resolve cases like this. The federal courts, as they have done in all constitutional cases, have therefore created a balancing test. In cases like this, that test pits the individual speech/association right against an elected governmental official's need to implement their policies.

In Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980), the Supreme Court created a test for political association cases: public employees can be dismissed from employment based on their political affiliations without violating the First Amendment if “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” The Court did not detail what constitutes "appropriate requirement." For that inquiry, we look to the Second Circuit, which in Vezzetti v. Pellegrini, 22 F.3d 483 (2d Cir. 1994), created an eight-factor test. These factors  

are “useful in deciding whether a position” is subject to the Elrod-Branti exception: whether the employee (1) is exempt from civil service protection, (2) has some technical competence or expertise, (3) controls others, (4) is authorized to speak in the name of policymakers, (5) is perceived as a policymaker by the public, (6) influences government programs, (7) has contact with elected officials, and (8) is responsive to partisan politics and political leaders. 

Further complicating matters, none of these eight factors is dispositive. We look to the totality of the circumstances. No case is going to be so one-sided that the court can easily decide the matter. Defendants will point to some of the factors, and plaintiffs will point to the other factors, and each side will say the balance tips in their favor. But you can see from the eight factors that elected officials and their appointees have wide latitude in hiring and promoting political loyalists despite the First Amendment's protection against associational discrimination.

Here, the Court of Appeals (Merriam, Livingston and Schwartz) says, plaintiffs each held a position for which political affiliation was an appropriate reason to fire them. They conducted officer integrity checks and internal investigations into allegations of officer corruption and/or misconduct, interviewed witnesses and targets of internal investigations, completed and filed classified and confidential reports with the Sheriff, reviewed office policies and forms and ensured compliance with professional police and corrections professional standards, maintained working relationships with Sheriff and Corrections command staff and other agencies, and completed special assignments. This is important work, but was it inherently political in nature? Yes, says the Court of Appeals.

The Sheriff was entitled to replace plaintiffs with people who shared his political views or philosophy. Or his management style. Plaintiffs did not have civil service protection, they were empowered to speak for the Sheriff, their jobs required expertise, and the job description make clear that a PIO has “wide latitude for independent judgment in carrying out” duties “in accordance with established office policies.”

Court broadly interprets the Ending Forced Arbitration Act

The Second Circuit has clarified the scope of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), holding that when the EFAA applies, it prevents enforcement of a pre-dispute arbitration agreement as to the entire lawsuit, not just the sexual-harassment claims.

The case is Diaz-Roa v. Hermes Law, issued on September 30. This is the second important EFAA case in the Second Circuit in recent weeks. The last ruling was favorable to defendants in limiting the scope of the continuing violations rule in EFAA cases. This ruling is quite favorable to plaintiffs.

Plaintiff worked for Hermes Law beginning in 2017 and eventually became an executive at ClaimDeck, a legal-technology company founded by Hermes Law's owner, Dwayne Hermes. She received stock options representing approximately 10 percent of ClaimDeck. By August 2023, those options had fully vested and were worth more than $1 million. In December 2023 and again in January 2024, plaintiff expressed her intention to exercise the options. She was fired shortly thereafter.

Plaintiff also alleged that she had been subjected to sexual harassment, claiming that defendants encouraged her to flirt with prospective clients, commented repeatedly on her appearance, and, at a business dinner, compared her to a piece of steak. She also alleged an earlier incident in which Hermes allegedly climbed onto a scooter behind her in a compromising position while another employee took photographs.

In her lawsuit, plaintiff asserted a series of claims, including sexual harassment under the New York City and New York State Human Rights Laws, breach of contract, violation of New York Labor Law § 193, tortious interference, and conversion. The latter claims arose from the alleged effort to terminate her before she could exercise her vested stock options. The defendants sought to compel arbitration based on an arbitration agreement Diaz-Roa had signed in 2018. The district court refused, holding that the EFAA rendered the agreement unenforceable with respect to the entire case. The defendants appealed.

A few asides. First, the Court of Appeals has jurisdiction to entertain defendants' immediate appeal from the trial court's order denying the motion to compel arbitration. Had the district court granted that motion, the Second Circuit would have had no jurisdiction to hear the appeal. That one-sided jurisdictional rule will not surprise plaintiffs' lawyers, who for the most part do not like arbitration, which gives employers a huge advantage because (1) there is limited discovery, (2) arbitrators are not required to follow the law, (3) there is no jury, (4) the proceedings are not public, (5) there is no right to appeal, (6) state courts are highly deferential to arbitration rules if you try to challenge them in court, (7) the employer usually pays the arbitrator for their time, (8) damages are generally lower, and (9) studies show that plaintiffs are less successful in arbitration than in court before a jury. The EFAA creates an exception to the rule that arbitration clauses are enforceable, but only when the plaintiff asserts a sexual harassment claim. The issue here is whether the non-harassment claims in the same case may also escape arbitration. The answer is yes. 

The EFAA amended the Federal Arbitration Act in March 2022, providing that, when properly invoked by someone alleging a sexual-harassment or sexual-assault dispute, a pre-dispute arbitration agreement is not enforceable “with respect to a case” that relates to that dispute. The defendants argued that “case” really meant individual claims. Under their interpretation, plaintiff's sexual-harassment claims could remain in federal court, but her unrelated conversion claim would have to go to arbitration.

Rejecting that interpretation, the Court of Appeals (Walker, Bianco and Perez) notes the ordinary meaning of the word “case.” A case means a lawsuit or judicial proceeding as a whole, while a “claim” refers to a particular demand for relief within that lawsuit. Congress knew how to use the word “claim” and actually used it elsewhere in the EFAA. The Court holds that Congress deliberately chose “case” in Section 402.

The Court also rejected the defendants' argument that this interpretation makes the statute's “relates to” language meaningless. A lawsuit must still have a connection to the sexual-harassment dispute. But once the EFAA applies to that case, the statute does not require courts to conduct a claim-by-claim arbitration analysis. In addition, the Court rejected reliance on the federal policy favoring arbitration. Congress itself amended the FAA through the EFAA and expressly created an exception for cases involving sexual-harassment or sexual-assault disputes. The FAA is a powerful statute, and it has sent countless cases to arbitration, but Congress does have the power to amend it, and it did so in response to the "Me-Too" era.

The Court declined to resolve a separate question concerning whether a plaintiff must merely allege a nonfrivolous sexual-harassment claim or must satisfy the more demanding Twombly/Iqbal plausibility standard to invoke the EFAA. The defendants did not properly challenge that issue on appeal, and they did not dispute that plaintiff's allegations satisfied even the higher standard.

Long Island Native American mascot dispute is revived on appeal

You may not be aware of this, but a culture war has been brewing on Long Island in recent years over the use of mascots featuring Native American imagery. The State of New York is trying to phase out "The Chiefs" and "The Warriors" and has issued regulations defining when districts and their employees may utilize or promote such mascots at school events.

The case is Wantagh Union Free School District v. New York State Board of Regents, a summary order issued on October 1. A state regulation says that public schools cannot use such names, logos or mascots except for classroom instruction. That would eliminate school and team mascots with Native American headdresses. Another rule says school officers and employees cannot "utilize or promote" mascots on school property or at a school function. That rule is the subject of this court ruling.

One plaintiff serves on the Wantagh Board of Education. He challenges this rule to the extent it may bar him from wearing Warriors apparel at a district sporting event. The district court dismissed his case, but the Court of Appeals (Walker, Park and Lee) reinstates it for additional analysis. Wearing such clothing is expressive conduct under the First Amendment. The clothing rule also implicates the First Amendment because he sues as a district volunteer, not an employee, which means he may not have to prove his clothing addresses a matter of public concern, a legal term of art that says the government cannot regulate public employee speech if covers political or social matters of interest to the community, like a whistleblower or letter-to-the-editor gadfly. Since plaintiff is an elected member of the Board of Education, the district court must determine whether the "public concern" framework applies to him or if he instead enjoys the same broader rights as any other member of the public who attends a high school football game.

The case also returns to the district court to consider the context of the plaintiff's speech. The Court of Appeals holds that wearing Warriors apparel at a public event may be intended to send a message about the state's restrictions on Native American mascots and also to support the team. This kind of "message" speech may be protected under the First Amendment. The district court has to determine in the first instance whether wearing this clothing is expression on a matter of public concern. If so, the regulation may be struck down as overbroad in violation of the First Amendment

 

 

Second Circuit rewrites the rules for associational standing in Section 1983 cases

The Second Circuit has overruled a 1973 precedent that barred organizations from bringing § 1983 lawsuits on behalf of their members. This ruling makes it easier for organizations to sue on behalf of their members.

The case is Defending Education v. Croton-Harmon Union Free School District, issued on September 15. Defending Education challenged student-speech policies adopted by the Croton-Harmon School District in Westchester County. The organization represented three parents whose children attend Croton-Harmon schools. The parents alleged that the district's policies concerning discrimination, harassment, bullying, gender identity, and student speech violated the First Amendment and chilled their children's speech. After the plaintiff organization lost this appeal last year, on a petition for reconsideration, the Court of Appeals (Calabresi, Parker and Nardini), holds that organizations may assert associational standing under the three-part test from Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). 

What is standing? That legal principle gives you the right to bring a lawsuit. Most litigants have standing: something bad happened to me, and I am bringing a lawsuit. Some organizations can also sue on behalf of their members. That's associational standing, and it is much more complicated.  

In Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973), the Second Circuit more than 50 years ago held that organizations could not sue under § 1983 to vindicate the rights of their members. The trial court in this case therefore dismissed the case for lack of standing. In April 2025, the Second Circuit initially affirmed that dismissal because Aguayo was controlling Circuit precedent.

Defending Education then sought reconsideration, asking the Second Circuit to overrule Aguayo. The Court granted the motion, rendering the first appellate ruling in this case a nullity. The Court noted that when Aguayo was decided, the Second Circuit was the first federal appellate court to hold that membership organizations could not bring § 1983 claims on behalf of their members. More than fifty years later, every other federal circuit that had addressed the question had reached the opposite conclusion. The Supreme Court, meanwhile, had repeatedly recognized associational standing, including in cases involving § 1983 claims.

The Supreme Court's decisions in Warth v. Seldin, 422 U.S. 490 (1975), and Hunt are implicated here. Under Hunt, an organization can sue on behalf of its members when three requirements are met: (1) the members would have standing to sue individually; (2) the interests at stake are germane to the organization's purpose; and (3) neither the claim nor the requested relief requires individual members to participate in the lawsuit.

The Second Circuit holds that Aguayo cannot be reconciled with this Supreme Court precedent. It also points to the Supreme Court's recent affirmative action decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), which applied the Hunt framework to an association asserting constitutional claims under § 1983.

The Court Appeals thus overrules Aguayo's associational-standing rule, as well as later Second Circuit decisions that relied on that rule. What it means is that organizations are no longer categorically barred from bringing § 1983 cases on behalf of their members in the Second Circuit. The case returns to the trial court to determine whether the organization satisfies Hunt's requirements. The Second Circuit expressly to decide whether the organization would ultimately satisfy the requirements for a preliminary injunction.

Second Circuit says border agents can search cellphones without suspicion

The Second Circuit has held that federal agents can search your cellphone when you enter the United States without a warrant or reasonable suspicion..

The case is United States v.Alisigwe, issued on September 17. Under this ruling, the government may conduct a manual search of a traveler’s cellphone at the international border without any individualized suspicion. That is what happened here.

Alisigwe was a lawful permanent resident whom authorities suspected of using fraudulent identification documents to open bank accounts. In 2019, when Alisigwe returned to the United States through Idlewild Airport, Homeland Security and Customs and Border Protection officers stopped him for an inspection. An officer scrolled through Alisigwe's phone, and photographed material in his photo gallery, which contained names, birth dates, Social Security numbers, bank-account information and addresses belonging to other people. Two years later, officers again stopped Alisigwe at the airport and searched his phone. This time they photographed a Whats App message concerning one of the people whose identity had allegedly been stolen. When Alisigwe moved to suppress the cellphone evidence, the district court rejected the motion, reasoning that cellphone searches at the border required reasonable suspicion but that the officers had reasonable suspicion in this case.

The Second Circuit (Menashi, Lee [concurring] and Gonzalez [D.J.]) agreed that the evidence could be used, but for a different reason. The majority invokes the border-search exception to the Fourth Amendment. Ordinarily, a warrantless search requires an exception to the warrant requirement. But as for border searches, the Supreme Court holds that the government's interest in determining who and what enters the country permits routine searches without probable cause, a warrant, or reasonable suspicion.

The Second Circuit had previously distinguished between routine and non-routine border searches. Searches of luggage and other belongings generally are routine; highly intrusive searches of the person, such as strip searches and body-cavity searches, can require reasonable suspicion. The majority holds that a cellphone falls on the “property” side of the equation. The court recognizes that cellphones contain much personal information. But it reasoned that the government's border interest is not limited to physical contraband. Digital information can constitute contraband, and information on a cellphone may help determine whether a person is entitled to enter the country.

Judge Lee concurred in the judgment. She agreed that the particular searches in this case did not require a warrant or probable cause. But she disagreed with the majority's broader holding that all international travelers' cellphones may be searched without any individualized suspicion. She notes that a cellphone is not a suitcase and can contain medical information, financial records, personal messages, internet searches, location information and other highly private material. Judge Lee questioned whether the traditional rationale for border searches should extend to this comprehensive modern device. She also noted that Alisigwe did not challenge the district court's finding that reasonable suspicion actually existed. As Judge Lee sees it, the court did not need to decide whether suspicionless cellphone searches are constitutional.

2d Circuit interprets the Ending Forced Arbitration Act (Newton v. LVMH Part III)

The Court of Appeals has issued an important ruling on the scope of the Ending Forced Arbitration Act (EFAA), holding that a high-profile sexual harassment plaintiff cannot avoid arbitration on her sexual harassment and retaliation claims even if some of the hostile conduct took place after the EFAA took effect in March 2022.

The case is Newton v. LVMH, issued on September 21. Plaintiff -- whose testimony before Congress helped lead to the EFAA's enactment -- asserts that she endured sexual harassment prior to March 2022, and that following enactment of the EFAA, the sex discrimination and retaliation continued through her termination in December 2022. Under the EFAA, plaintiff can avoid arbitration on all her claims, including those that accrued prior to March 2022, if they are part of a continuing violation, an equitable principle that allows you to sue over actions that would be otherwise time-barred. 

"However, to trigger the doctrine, the timely and untimely acts must be 'sufficiently related' such that they constitute part of the same 'unlawful employment practice.'” The Court of Appeals (Bianco, Menashi and Brindisi [D.J.]) cites McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75, 77 (2d Cir. 2010), for this proposition. Until now, McGullam was the leading case on this issue. The Court adds:

To determine whether the requisite relationship between timely and untimely acts has been shown, we consider a variety of factors, including “the commonality of the environment in which the incidents took place (and whether a change in environment is due to intervening action by the employer), the nature of the incidents, and the temporal discontinuity between the incidents.” 

The continuing violation doctrine does not apply here because the pre- and post-EFAA acts of retaliation "are not sufficiently related such that they are 'part of the same course of discriminatory conduct," as "the 'who' and the 'how' of the alleged harassment and retaliation differed between the two relevant time periods." 

Prior to the EFAA's enactment, plaintiff primarily suffered discrimination from colleagues Doran (sexual harassment) and Firestone (who perpetrated the retaliation). The post EFAA retaliation was perpetrated by her supervisor, Pratt. Moreover, pre-EFAA, the Title VII violations involved pure sexual harassment. The post-EFAA violations involved retaliation that differed materially from the pre-EFAA retaliation. Pre-EFAA, plaintiff alleged, the company undertook a sham investigation into her sexual harassment complaint, giving her bad performance reviews, and other acts of workplace hostility. Post-EFAA, she alleges that LVMH engaged in a different pattern of retaliation, including requiring her to get pre-approval before she spoke publicly at panels or conferences, micromanaging her work matters, ignoring her and terminating her employment. There is not enough overlap between -pre- and post-EFAA allegations of retaliation to trigger the continuing violations rule.