Ageist comments not enough to survive Rule 12(c) motion to dismiss

The Court of Appeals has held that a plaintiff failed to plausibly plead age discrimination and retaliation even though he was terminated five months after he reported that a supervisor made negative comments about his age. 

The case is Lively v. WAFRA Investment Advisory Group, issued on July 23. Plaintiff worked for this company for 21 years and was a "top performer." He alleges that a supervisor, Al-Mubaraki told company executives and others that plaintiff was "too old and that he would seek to replace Lively (and them) with younger employees." Plaintiff also alleges that this supervisor told plaintiff's son that the company "needed to replace older employees like his father with younger employees like Lively's son." The first comment took place after June 2017. The second comment happened in November 2017. In November 2017, plaintiff reported these comments about "the discriminatory pattern that was emerging" and specifically reported his supervisor's age-related comments. The HR Director expressed frustration that Al-Mubaraki continued to engage in inappropriate conduct. Another company executive told plaintiff that Al-Mubaraki's comments were intended as a joke. Plaintiff was fired in On May 1, 2018 after the company determined that he had sexually harassed a female subordinate. Plaintiff alleges this justification is false and that the female subordinate had in fact solicited plaintiff's involvement in her personal and professional life and plaintiff had no reason to know their interactions were unwelcome.

This case was dismissed under Rule 12(c), or judgment on the pleadings, which happens after the defendant files its answer. The Court of Appeals (Nardini, Park and Walker) provides a brief detour about the reasons behind Rule 12(c) (as opposed to the more common Rule 12(b)(6), where the defendant seeks to dismiss the case in lieu of an answer). The Court cites a D.C. Circuit case for the proposition that "[J]udgment on the pleadings is not appropriate if there are issues of fact which if proved would defeat recovery, even if the trial court is convinced that the party opposing the motion is unlikely to prevail at trial.” In other words, the Second Circuit says, "a court may consider undisputed allegations of fact on a Rule 12(c) motion under the same standard as Rule 12(b)(6), but it may not use a motion for judgment on the pleadings to weigh disputed factual allegations."

On the discrimination claim, after noting the plaintiff must prove that age was the "but-for" cause of the adverse decision, citing recent Supreme Court authority, Comcast Corp. v. National Assn. of African Am.-Owned Media, 140 S.Ct. 1009 (2020), the Second Circuit states that "the 'but-for causation standard applies not only at trial but at the pleading stage as well." A footnote in this opinion suggests the Second Circuit's analysis in Littlejohn v. City of New York, 795 F.3d  297 (2d Cir. 2015), which offers a generous legal standard for plaintiffs on a Rule 12(b)(6) motion, may not survive the Supreme Court's analysis in Comcast. 

The age-related comments lie at the heart of the case. But these are "stray remarks," the Court of Appeals holds, for the following reasons:

First, Al-Mubaraki made only two remarks, and Lively provides details for only one of those remarks.   More significantly, Lively has failed to raise a reasonable inference that there is 'a direct link' between the age-related  remarks and his termination. Al-Mubaraki’s comments were separated by several months and occurred five and ten months before Lively’s termination."

Second,  "Lively has alleged no facts concerning 'other indicia of discrimination' that would make Al-Mubaraki’s remarks 'bear a  more ominous significance.' To the contrary, the complaint alleges that Lively was promoted and received positive feedback from Al-Mubaraki after Al-Mubaraki made the discriminatory remarks."

Third, "Lively [does not] allege that Al-Mubaraki played any role, much less 'a substantial role[,] in the decision to terminate.' Instead, the complaint states that WAFRA’s HR Director and Chief   Administrative Officer handled his termination." This third factor is a way for plaintiffs to distinguish this case from their own cases.

Fourth, "Lively’s own complaint describes the stated reason for his termination—i.e., 'violating company policies and the code of ethics prohibiting sex discrimination and harassment in the workplace.' Even without considering the truth of the allegations contained in Kraut’s EEOC and  federal court complaints, the district court could properly have taken judicial notice of the fact that  those complaints had been filed. Moreover, Lively’s termination letter, which was attached as an  exhibit to Defendants’ answer, was also within the universe of materials the district court could consider on a Rule 12(c) motion as a document incorporated by reference into the complaint. In light of that factual context, Lively’s conclusory narrative that the sexual harassment allegation 'was nothing
more  than  a  pretext  to  fire  him  for  being  an  older  worker'  is  implausible."

The retaliation claim is also gone. The Court of Appeals holds that plaintiff has not plausibly plead that his protected activity was the "but for" cause of his termination. Borrowing from Title VII caselaw, the Court states that "ADEA retaliation claims likewise require 'proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.'” 

The Court holds that plaintiff "has alleged no facts suggesting that the reporting of Al-Mubaraki's comments was the 'reason' for  his termination. He alleges no evidence (direct or circumstantial) of retaliatory motive based on his reporting of Al-Mubaraki’s comments. Instead, he “has simply asserted in conclusory  fashion that ‘as a result of reporting Al-Mubaraki’s misconduct WAFRA seized the opportunity to terminate Lively based on the basis of a false accusation of sex discrimination and harassment.’” 

What about temporal proximity? Isn't that enough to satisfy the pleading burden? The Court of Appeals holds that plaintiff has not alleged temporal proximity between his reports and his termination sufficient to raise a plausible inference of causation." For that holding, the Court cites Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018), which stated in turn:

Relying on Grant v. Bethlehem Steel Corporation, 622 F.2d 43 (2d Cir. 1980), Duplan contends that the more than two-year delay between his first EEOC charge and these alleged adverse employment actions does not break the chain of causation because the City retaliated against him at the "first available opportunity" to do so in that particular manner. Appellant's Br. at 26. Even assuming that Grant establishes the principle that causation can be shown on that theory, however, it would be difficult to apply it to the facts that Duplan has alleged. In part, that problem is caused by the lengthy gap in time between his initial protected act and the ensuing instances of retaliation that were properly exhausted by his 2014 complaint. For instance, Duplan does not specify whether he was eligible for or received other raises between his 2011 complaints and the 2013 raise he was denied. It is also unclear how we could apply a "first available opportunity" theory to what Duplan alleges to be a persistent pattern of denying his applications for new positions when he has only exhausted the last denial in that chain.

 

 

 

Court of Appeals sustains West Point's disciplinary procedures

It is quite prestigious to matriculate at West Point Military Academy. The plaintiff in this case became a West Point cadet, but he was kicked out of the program and ordered to pay the government more than $200,000 in restitution. He challenges the due process leading up to his removal, but that challenge fails.

The case is Doolen v. Wormuth, issued on July 20. West Point has an elaborate mechanism for cadet discipline, including remedial measures short of expulsion, formal disciplinary proceedings that include an evidentiary hearing, and appellate rights within the system. The Second Circuit devotes close to seven pages describing the process. 

Plaintiff was subjected to discipline relating to alcohol violations and excessive demerits. The Court says he snuck alcohol into the barracks and engaged in a loud and profane argument with other cadets; that argument became physical. After he was removed as a cadet, he returned following a Judge Advocate General finding about procedural deficiencies associated with that expulsion. But when plaintiff returned, defendants initiated disciplinary proceedings again, the investigating officer ruled against him, determining he lacks the "attributes essential to lead as an officer of the United States Army." The IO also said plaintiff is immature and selfish. Plaintiff was expelled from West Point and ordered to recoup the government for the cost of education.

While courts are loathe to second-guess military determinations under the Intra-Military Immunity Doctrine, one exception that rule involves the failure to follow its mandatory regulations in cases that substantially affect a service member. That exception applies here, so plaintiff wins that hurdle.

While plaintiff is able to overcome the immunity hurdle, he loses the war, so to speak. The Court of Appeals finds that West Point provides enough due process to protect cadets from unfair discipline. These procedures suffice both prior to discipline and after a disciplinary violation is found. We call that pre-  and post-deprivation procedures.

Police bribery conviction is upheld

This man was charged with the most unusual crime I have ever seen in reviewing Second Circuit opinions: he was a go-between corrupt police officers and criminal defendants. He would provide expensive gifts to the high-ranking officers in exchange for using their influence to obtain lenient treatment for the defendants. Bribery through gifts, not money. The defendant was convicted at trial, and the Court of Appeals affirms.

The case is United States v. Reichberg, issued on June 15. Here is how the Court of Appeals describes the arrangement:

The benefits the officers received took many forms, including trips on private jets and luxury hotel stays with prostitutes; football, basketball,  and  hockey tickets  worth  tens  of  thousands  of  dollars; international travel arrangements to Israel  and  the Dominican Republic;  home  improvements  worth  thousands  of  dollars; and approximately  $60,000  in  business  steered  toward  certain  of  the officers’ private security companies.

Reichberg  and  [co-defendant] Rechnitz’s  largesse  obtained  a  host  of  favors from  NYPD  officers.   For  example,  one  of  Reichberg’s  clients  was arrested  three  separate times,  but  each  time  was  released  from custody after Reichberg contacted NYPD officers. [Co-defendant] Grant exerted his influence to secure the processing and approval of gun licenses, even when those applications were deficient or the applicants unqualified for  the  type  of  license  sought. Grant  conferred  this  benefit  on Reichberg, who obtained a full-carry gun license without the licensing division bothering to investigate whether he qualified for one.  Banks secured  Grant’s  promotion  to  Inspector  in  the  19th  Precinct,  on Manhattan’s   Upper   East   Side—a   strategic   posting   valuable   to Reichberg   and Rechnitz   because   of   its   proximity   to   Rechnitz’s Manhattan  office.    Officers  also provided  police  rides  and  police escorts  to  Reichberg  and  Rechnitz’s  friends  to  cut through  traffic, arranged  for  an  NYPD  police  boat  to  give  rides  to  attendees  at  a barbecue Reichberg hosted, and arranged for an NYPD helicopter to do a flyover of a cocktail cruise organized by Reichberg.

Defendant raises a series of issues on appeal. One alleges a Fourth Amendment violation over the unlawful seizure of electronic evidence, which I imagine is how many of these bribes were proven at trial. It appears the government sent to Reichberg's co-defendants electronic discovery that was seized from his devices, but in doing so it sent them more information than they were entitled to, and that this extra evidence hurt his case. But the trial court found, and the Court of Appeals agrees, that the government released this information in error, and not on purpose. Fourth Amendment suppression remedies are available to deter the government from conducting unlawful seizures in the future. That interpretation of the exclusionary rule was articulated by the Supreme Court Herring v. United States, 555 U.S. 135 (2009), a controversial 5-4 ruling from the Supreme Court. What it means for this case is that since the data was mistakenly released, there is no Fourth Amendment violation because it was done in the good faith that Reichberg was consenting to the release of all of this data.

Decision rejecting religious organizations' challenge to Vimeo's policies is vacated

In March, the Court of Appeals held that a religious organization could not sue Vimeo, an Internet video platform, for religious discrimination after Vimeo removed its videos on the ground that the religious organization  violated Vimeo's policies barring the promotion of "sexual orientation change efforts." The case interpreted the Communications Decency Act, which states that no provider or user of an interactive computer service shall be held liable for:

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or any action taken to enable or make available to information content providers or others the technical means to restrict access to [the] material described.

The March ruling has now been vacated. The Court of Appeals has granted the religious organization's petition for rehearing. The order was issued on July 15. The district court's ruling, which also rejected the organization's argument, remains in place.

Age discrimination claim against Department of Education fails

The Second Circuit hears its fair share of employment discrimination cases, but very few of them result in precedential, published opinions that favor the plaintiff. This is another case where the plaintiff loses by summary affirmance. What it means is the plaintiff lost the appeal shortly after oral argument because the Court of Appeals thought this was a routine case with an easy answer.

The case is Reiss v. Hernandez, issued on July 14. Plaintiff claims age discrimination motivated the Department of Education's determination to terminate her employment. Upon such an allegation, the courts require management to articulate a reason for the adverse decision. The plaintiff then has to show this was not the real reason and that age discrimination was the true motive. The plaintiff's burden is more difficult to satisfy than you might think. The courts tend to be deferential to managerial prerogative. 

The Department says plaintiff was let go because she has ineffective ratings as a teacher. Plaintiff says the older teachers got worse ratings than the younger teachers. The court's reasoning tells us how particularized the evidence of age discrimination must be in cases like this:

Although Reiss asserted that older teachers were given disproportionately worse ratings than younger teachers, she did not provide any evidence that younger teachers who received effective ratings were similarly situated to Reiss, an above-40-year-old teacher who received ineffective ratings. Nor did Reiss adduce evidence to support her contention that Defendants pushed out older teachers for younger teachers, let alone evidence that younger teachers in fact replaced older teachers at P.S. 123.

Plaintiff needed to identify comparator, younger teachers who were a close match to her employment status in order to prove age discrimination. The Court of Appeals (Parker, Cabranes and Newman) says does not have this evidence. 

While plaintiff claims the principal made ageist comments, the Court of Appeals sweeps this evidence aside, reasoning that "were insufficient to create a triable issue of fact that Defendants’
justification was merely pretext." The district court ruling states that "Reiss specifically claims that Principal Hernandez told her to retire because she was ‘too old’ to be effective at anything.” The district court said this was not enough to win the case, as this comment "appears to be a mischaracterization. In the Second Amended Complaint, Reiss alleges that Principal Hernandez wanted her to retire because in [Principal Hernandez’s] world [Reiss] was ‘too old’ to be effective at anything.' In other words, Reiss now attributes that comment directly to Principal Hernandez, whereas it initially served as Reiss’s subjective view of Principal Hernandez’s state of mind." 

Would a jury interpret this evidence differently? Most federal complaints are not filed under oath, but the comment plaintiff highlights on appeal was probably from her sworn deposition. But the Court of Appeals agrees with the district court, and what might appear to be "smoking gun" evidence is not enough to survive summary judgment, and the case is over.

FMLA may not save your position if the company eliminates your job in a reduction-in-force

The Family and Medical Leave Act was enacted in 1993. It allows employees to take up to 12 weeks of unpaid leave if they or a close family member have to tend to a serious medical condition. FMLA also allows employees to sue if their rights are violated under the Act. This case went to trial and the plaintiff lost. The Court of Appeals sustains the verdict against him.

The case is Barger v. First Data Corp., a summary order issued on July 6. Plaintiff took FMLA leave and tried to return to work with a doctor's note. But defendant told plaintiff that his position was eliminated. True, FMLA prevents management from denying a return-to-work under certain circumstances, but FMLA leave does not guarantee that you will have your job back upon return from leave. Instead, the statute says that restored employees are not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been been entitled had the employee not taken leave." This language often applies when the employee's position is eliminated when he is out of FMLA leave.

Plaintiff loses because, during FMLA leave, the company enacted a reduction-in-force, or a RIF. At trial, the company put on evidence that, during this time, it eliminated the top 10% of its most highly compensated positions, including plaintiff's position, for which he earned more than $70,000 per year. Before plaintiff tried to return to work, his position was already included in the RIF list. The Court of Appeals (Bianco, Carney and Komitee [D.J.]) says the jury credited this evidence, which is why plaintiff lost at trial, and the Court of Appeals will not second-guess the jury's factual findings on appeal. That is a fact of appellate life, even if plaintiff in fact had better evidence on this issue than management did. We let the jury decide what happened.

Manslaughter defendant wins new trial on habeas challenge to state-court conviction.

Habeas corpus petitions filed in federal court challenging state court convictions became much harder to win after Congress enacted a law in 1996 that said only state court convictions that violate clearly-established constitutional law (as determined by the Supreme Court) may be overturned in a habeas proceeding. That meant that actual but arguable constitutional violations in state court are not enough. To win, you have to show a clear constitutional violation. The inmate in this case overcomes that hurdle in the Court of Appeals, and he gets a new trial.

The case is Garlick v. Lee, issued on June 11. Garlick was convicted of first-degree manslaughter after someone was found stabbed and beaten to death in a Bronx apartment building. The detective ordered an autopsy of the victim. The report stated the victim was stabbed in the heart. The defendant claimed he was trying to defend himself and his girlfriend during a fight. At trial, the state called a witness to introduce the autopsy report, but this witness did not author the report and was not involved in the autopsy. Defendant objected on Sixth Amendment grounds that he was unable to confront the author and autopsy doctor. This report played a huge part of the state's strategy at trial, and defendant was convicted. 

On appeal to the First Department in the state appellate system, the Appellate Division said there was no Sixth Amendment violation because the report did not actually link defendant to the commission of the crime, and the report was not testimonial. On the habeas petition to federal court, the EDNY said the First Department's ruling violated clearly-established constitutional law, and the Second Circuit (Wesley, Sullivan and Menashi) agrees. Defendant wins the appeal.

Defendant wins because settled Supreme Court authority, Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), said forensic reports cannot be admitted in evidence at trial without an opportunity to cross-examine the person who wrote them. That case did not involve an autopsy report; it concerned forensic tests showing the defendant possessed drugs. A few years later, the Court said that even forensic reports that were prepared by "mere scriveners of machine-generated results" are inadmissible without cross-examination. These cases help defendant because (1) the First Department did not honor the principle that the autopsy report is testimonial and therefore needs confrontation at trial; (2) it was prepared in support of an active police investigation; (3) the report was used at trial to exclude someone else as the attacker; and (4) the Supreme Court has held that even forensic reports that do not directly accuse the defendant of committing the crime are still subject to cross-examination under the Sixth Amendment. This error was not harmless because the report excludes someone else as the attacker and there was no other medical evidence to pin the crime on defendant. Nor were there any witnesses who claimed that defendant stabbed the victim to death. The autopsy report was the strongest evidence against defendant.