Plaintiff successfully pleads retaliation claim (Newton v. LVMH Part II)

The Court of Appeals has provided further guidance on how to determine if a Title VII retaliation plaintiff pleads a causal link between her protected activity and the adverse action, such as termination. We do not just look at the timing of the adverse action but its context.

The case is Newton v. LVMH, issued on September 21. I covered the protected activity holding at this link. The protected activity took place in August 2022, when plaintiff declined to meet with her supervisor to discuss settling her pending claims. Plaintiff was fired in December 2022. That four-month gap is enough to plead a prima facie case. The Second Circuit has issued numerous rulings stating that a certain time period is enough to assert causation. Here is how the Court (Bianco, Menashi and Brindisi [D.J.]) frames the inquiry in this case:

the time between the refusal and the termination is as much as four months. We have previously held that similar amounts of time are sufficient to suggest causation. See, e.g., Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“[W]e have previously held that five months is not too long to find the causal relationship.”); Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (five months); Gorman-Bakos v. Cornell Co-Op Extension of Schenectady Cnty., 252 F.3d 545, 555 (2d Cir. 2001) (four months). 

Importantly, “[w]here temporal proximity is not the only evidence that bears on a causal connection, we have recognized that the lapse in time between the protected activity and adverse action can be longer.” Banks v. Gen. Motors, LLC, 81 F.4th 242, 277-29 78 (2d Cir. 2023). That additional evidence of causation can arise in the context of an ongoing discrimination lawsuit brought by the employee. . . . Moreover, in looking at “the facts as a whole,” we can also consider intervening patterns of “antagonism” or a “drumbeat of retaliatory animus” that do not themselves necessarily rise to a level of an adverse employment action.

Plaintiff does not merely rely on temporal proximity but the pattern of antagonism that followed the filing of her lawsuit, including her humiliating, public termination. Ultimately, "the combination of temporal proximity and these antagonistic actions lead us to conclude that Newton has plausibly alleged causation." 

Plaintiff engaged in protected activity in declining to meet with supervisor about settling her pending sexual harassment claims (Newton v. LVMH Part I)

The Court of Appeals has reinstated a Title VII lawsuit that alleged that management retaliated against a lawyer for a prominent international firm after she filed a sex discrimination lawsuit and later on declined to discuss settlement with her superior. The Court further holds that plaintiff has sufficiently plead that her protected activity in declining to discuss settlement led to a series of adverse actions, including her termination.

The case is Newton v. LVMH, issued on September 21. This blog post will cover whether plaintiff engaged in protected activity. 

Plaintiff sued LVMH in 2019 in state court and again in December 2023 in federal court, alleging that she was subjected to sexual harassment and retaliation in violation of state, federal, and city law. (The state court action was sent to arbitration and the Title VII action asserted claims that plaintiff accrued after the Ending Forced Arbitration Act (EFAA), which bars arbitration in sexual harassment cases, took effect.

In August 2022, following what plaintiff claimed was a series of retaliatory acts, including exclusion from a company retreat, disdainful looks at a company retreat, being berated over her job performance, and a time-consuming assignment given while she was on vacation, her boss, Pratt, asked if plaintiff would consider settling her claims. Plaintiff declined the invitation. Afterward, from August 2022 through December 2022, she suffered additional adverse actions, including a requirement that she get pre-approval before she agreed to speak at any panels or conferences (plaintiff was a high-profile public speaker about sexual harassment), exclusion from important communications, being ignored at weekly one-on-one meetings with Pratt, exclusion from an employee's farewell dinner, termination in a publicly humiliating manner, and denied her personal effects, a bonus, and a matching charitable contribution.

The Court of Appeals (Bianco, Menashi and Brindisi (D.J.]) holds that plaintiff engaged in protected activity in refusing to meet with her boss to discuss settlement. This is a new holding for the Second Circuit, which reasons:

If initiating a claim constitutes an assertion that the plaintiff was wronged, refusing to end a pursuit of that same claim with a settlement can—depending on the context—constitute a continuation of the same assertion. The relevant question is whether the employer understood or could reasonably have understood that the plaintiff’s refusal was an assertion of her continued opposition to the employer’s unlawful employment practices in violation of Title VII. If so, the refusal is a protected activity.

To trigger the "opposition clause" under Title VII, "such opposition can potentially include not only the filing of a discrimination lawsuit itself, but also other statements made, activities pursued, or positions taken by a plaintiff during the course of that discrimination lawsuit—such as a deposition, settlement discussions, a trial, or an appeal." 

By August 2022, when plaintiff refused to meet with Pratt, she had been vigorously pursuing her legal claims against the company and spoke out before Congress in support of the EFAA. In this context,  "Newton has plausibly alleged that when she refused to meet with Pratt to discuss settlement, he could have reasonably understood that refusal as communicating her continued belief that she had been wronged by [alleged sexual harasser] Doran and LVMH’s discriminatory conduct, and that she wanted acknowledgement and legal redress for those wrongs. That constitutes opposition and, thus, protected activity." The Court states in a footnote that not every refusal to settle constitutes protected activity. "What an employer can reasonably understand such a refusal to communicate depends on the full context of the refusal."

Importantly, the Court further holds it was not fatal that plaintiff did not affirmatively tell Pratt that her refusal to discuss settlement was a means to continue protesting her discrimination. Plaintiff asserts that objection was implicit. The Court reasons:

the Supreme Court has recognized that conduct or communications that reveal opposition, even implicitly, can constitute protected activity. See Crawford v. Metro. Gov't of Nashville, 555 U.S. 271, 277 (2009) (“Countless people were known to ‘oppose’ slavery before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it ‘opposition’ if an employee took a stand against an employer’s discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.”); accord Albunio v. City of New York, 16 N.Y.3d 472, 479 (2011) (concluding that opposition under the NYCHRL does not require an explicit statement that the plaintiff is a victim of discrimination).  

 

   

For appellate junkies only

This is a case for appellate junkies. The Court of Appeals decides whether it even has jurisdiction -- or authority -- to resolve the appeal. Actually, this is not just for appellate junkies. If you handle cases in the district court only, you have to know what to do to preserve your client's appellate rights. 

The case is Peralto v. New York City Dept. of Education, a summary order issued on September 16. This case involves the Individuals with Disabilities in Education Act (IDEA), which grants certain rights to disabled students, including an Individual Education Plan (IEP). Plaintiff sought a preliminary injunction in the district court. On June 26, 2025, the SDNY said it did not resolve that motion and a decision will issue in due course. But plaintiff filed a notice of appeal on July 10, 2025, even before the court issued a ruling on the injunction. On July 15, the court formally denied the injunction. Two weeks later, plaintiff filed a motion in the Second Circuit to expedite appellate review, noting that plaintiff was challenging the district court's injunction ruling and explaining why that ruling was incorrect. Plaintiff never filed a formal notice of appeal.

Normally, we take up an appeal by filing a notice of appeal. That confers appellate jurisdiction upon the Court of Appeals. Without a formal notice of appeal, does the Second Circuit have the power to decide the appeal? Yes, says the Second Circuit (Calabresi, Carney and Perez). This is because courts will liberally construe the requirements under Federal Rules of Appellate Procedure 3(c), which governs the filing of notices of appeal. The Court notes that "a document not styled as a notice of appeal may therefore serve as one if it is timely and gives the notice required by Rule 3."

The motion to expedite the appeal qualifies as a notice of appeal under FRAP 3 because it was timely and it identifies the denial of the preliminary injunction as the ruling plaintiff sought to challenge. It does not matter that the motion to expedite was filed in the Second Circuit and not the district court. While we are supposed to file the notice of appeal in the district court, filing that document in the Court of Appeals is not fatal under FRAP 4(d).

On the merits, plaintiff loses. The Court of Appeals finds the district court did not improperly deny the injunction request over the student's private school placement.  

Second Circuit clarifies prior ruling on reasonable accommodations in religious discrimination cases

The Court of Appeals has clarified a prior ruling interpreting Title VII's requirement that the plaintiff prove she was denied a reasonable accommodation because of her religion. The clarification does not alter the ultimate ruling in this case, but it offers a more plaintiff-friendly rule for other cases.

The case is Bergin v. New York State Unified Court System, issued on September 15. My summary of the original ruling, issued on July 15, is here. In that post, I wrote:

The Second Circuit holds that its prima facie test for failure-to-accommodate claims is no longer good law following the Supreme Court’s 2015 ruling in EEOC v. Abercrombie & Fitch Stores. The Circuit thus vacated summary judgment entered in favor of a court officer who was fired after refusing to comply with the Unified Court System's COVID-19 vaccine mandate.

. . . 

“An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive,” just as “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The Supreme Court thus rejected one requirement of our old rule (that a plaintiff inform an employer of the need for an accommodation) and clarified that what a plaintiff must plead and, ultimately, prove (that the employer was motivated in part by the desire to avoid offering a religious accommodation). The Supreme Court explained that a “request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive,” but it “is not a necessary condition of liability.”

In other words, the plaintiff has to show that management was motivated to deny the accommodation due to her religion. In the clarification issued on September 15, the Court adds a footnote stating that "Plaintiff must show the accommodation was denied because of religion, but she does not have to prove traditional discriminatory animus or hostility toward religion." Here is the footnote in full:

In stating that Abercrombie abrogated the absence of a “motive” requirement in our prior test, we do not suggest that a new, heightened discriminatory motive requirement exists in failure-to-accommodate cases. That is to say, an employee asserting a failure-to-accommodate claim need not show that an employer’s denial of an accommodation was motivated by discriminatory animus against religion. But, consistent with Abercrombie, the employee does have to show that the denial was “because” of the employee’s religion as opposed to, say, the employee’s failure to timely provide sufficient information.

Another change to the original opinion is a footnote that references the Supreme Court's ruling in Muldrow, which made it easier for plaintiffs to prove an adverse action in discrimination cases. Muldrow dispenses with the requirement that plaintiffs show the personnel action was a "material" change in his employment. Instead, the plaintiff must show "some harm." In the new footnote, the Court of Appeals declines to find whether or not the denial of a reasonable accommodation would constitute an adverse action under Muldrow. 

 

 

 

Plaintiff gets new trial on wrongful conviction fabrication-of-evidence claim

Here is another fabrication-of-evidence claim that involves law enforcement allegedly cutting corners to ensure a criminal conviction. The case will eventually be decided by a jury. 

The case is Batista-Reyes v. Paul, issued on August 17, 2.5 years after oral argument. The Court holds that plaintiff is entitled to a trial on his claims for malicious prosecution and fabrication of evidence under § 1983. The Court also holds that the defendant, former Troy Police Sergeant Robert Paul, was not entitled to qualified immunity at the summary judgment stage.

In December 1993, a man staying at a Super 8 Motel in Troy, New York, was assaulted and robbed. He told police that his attacker was a dark-skinned Black man with a short afro, about 5'8" to 5'10", wearing a long black jacket. Paul became the lead investigator and soon focused on Batista-Reyes. But plaintiff did not fit the victim's description. He is a light-skinned Hispanic man, did not have an afro, and was wearing a white-and-blue Giants jacket rather than a long black jacket. Yet, two women, Laura Ashley Pullen and Shannon Houser, gave police statements implicating plaintiff. Pullen became the prosecution's principal witness. She testified before the grand jury and at trial, and Batista-Reyes was convicted of all seven counts, receiving a sentence of 25 years to life.

Pullen then changed her mind in 2002, writing a series of letters while she was incarcerated, stating that plaintiff did not actually commit the crime and she was pressured into implicating him. Pullen said the District Attorney had threatened her and “gave me a script.” She also wrote that she was “TOLD to say everything” and was even made to rehearse her responses. This led to an investigation, and a special prosecutor concluded there were serious doubts about Pullen's original testimony. The state court granted set aside the conviction and Plaintiff was released after spending nearly 25 years in jail. 

We have a series of issues. First, hearsay. Pullen's letters were unsworn, and Pullen was unavailable as a witness. Paul argued that the letters were hearsay and could not be used to defeat summary judgment. The Second Circuit (Carney, Lee and Walker in dissent) disagreed, holding the letters could be admissible under the residual hearsay exception, Rule 807. We rarely see rulings interpreting the residual exception, much less rulings that favor the party trying to prove their case through this kind of hearsay. Plaintiff wins this argument. The letters are reliable because Pullen wrote multiple letters over several months, apparently without external prompting, she repeatedly made the same allegations, her letters were not written in response to police questioning, and the circumstances suggested that she was motivated by guilt rather than an effort to curry favor with law enforcement. The letters were also probative because Pullen had repeatedly avoided being deposed or appearing in court. Thus, at summary judgment, the letters were the best evidence Batista-Reyes could reasonably obtain concerning what happened in 1993.

On the probable cause issue, the district court noted that the grand jury indictment creates a presumption of probable cause. But, the Second Circuit notes, the presumption disappears when there is evidence that the indictment was procured through fraud, perjury, suppression of evidence, or other bad-faith police conduct. Pullen's letters created a factual dispute about whether her grand jury testimony had been coerced or fabricated. The Court also found evidence connecting Paul to the alleged misconduct. He was the lead investigator. He interviewed Pullen and obtained her written statement. A reasonable jury could find that Paul was one of the people Pullen meant when she repeatedly referred to “they” giving her a script and telling her what to say.

What also helps plaintiff's case is he did not match the victim's description, and there was evidence that Paul failed to investigate another possible suspect who apparently fit that description better. A jury could therefore find that Paul failed to conduct an investigation that a reasonable officer would have pursued.

On the fabrication of evidence claim, the Second Circuit noted that a police officer violates due process when he creates false information likely to influence a jury and forwards that information to prosecutors. And knowingly eliciting false testimony from a witness can constitute fabrication of evidence.

In 1993, Houser gave police a detailed account of the assault. Her description closely tracked the victim's account, including details about the victim sleeping against the headboard, the television and light, the knife, the threats, and the Nintendo games. But in a 2020 deposition, Houser said she was never in the room and did not see the assault. She explained that she had been using drugs and had told police what they wanted to hear, whether it was true or not. While the trial court said plaintiff's theory about Paul feeding Houser the information was speculative, the Court of Appeals holds instead that the evidence was sufficient to allow a jury to determine how Houser knew the details in her original statement and whether Paul participated in creating that statement. The same was true of Pullen. Her 2002 letters, combined with Paul's role as lead investigator and his involvement in obtaining her statement, created a genuine factual dispute over whether he coerced or fabricated her evidence.

Lyft not liable under ADA for not providing accessible vehicles to disabled riders

The Court of Appeals holds that a Lyft passenger cannot win her disability discrimination claim despite claiming that Lyft did not provide her wheelchair-accessible vehicles, also known as WAVs. 

The case is Lowell v. Lyft, Inc., issued on August 27. Plaintiff uses a motorized scooter and lives in White Plains. Lyft offers wheelchair-accessible “Access” rides in nine cities, including New York City. But it does not offer Access service in Westchester or most other areas.

The plaintiffs, including an advocacy group, proposed ways that Lyft could solve the problem. They wanted Lyft to remove its “blocker” preventing WAVs from being used in areas without Access service. They wanted Lyft to ask its drivers whether they had access to WAVs. They also proposed allowing WAV drivers to accept other types of rides, prioritizing WAV requests, and offering bonuses and incentives to attract WAV drivers. After a bench trial, the district court rejected those proposals. On appeal, plaintiffs argued that the district court improperly placed the burden on them to prove their proposed modifications were effective.

While the ADA requires transportation services to make reasonable modifications to their policies and practices, a plaintiff seeking a modification must prove the modification will be effective. As the Second Circuit (Kearse, Nardini and Lee) explained, an ineffective modification cannot be reasonable because it does not accommodate the plaintiff's disability. The plaintiff must also identify a plausible modification whose costs, on their face, do not clearly outweigh the benefits. Once that showing is made, to win the case, the defendant must prove the proposed modification is unreasonable.

Plaintiffs lose on the plausibility element. The problem for plaintiffs is there was not enough evidence that their proposal would create a functioning WAV service in Westchester. WAVs are rare and are generally not manufactured by automobile companies as wheelchair-accessible vehicles. Instead, standard vehicles are converted afterward, and those conversions can cost tens of thousands of dollars. In addition, there are not enough WAV drivers out there. When Lyft had tried to recruit WAV drivers in the Philadelphia and Delaware areas, it contacted more than 26,000 drivers, fewer than 130 responded, 30 referrals were received, and only one WAV driver joined Lyft's platform. That experience made it difficult for plaintiffs to prove that simply asking Westchester drivers whether they had WAVs would solve the problem.

The plaintiffs also claimed the district court had improperly required them to prove that their other proposed modifications were reasonable. The Second Circuit disagrees. The district court properly required plaintiffs to prove effectiveness while applying the lighter burden concerning reasonableness. Lyft then presented evidence showing that the proposals were ineffective and, in some respects, costly or otherwise unreasonable. Because the plaintiffs could not prove that their modifications would actually provide WAV service, the Court did not even have to reach Lyft's argument that the proposals would fundamentally alter its business.

Possible Batson violation may yield a new trial for plaintiff

A personal injury plaintiff may have a new opportunity to prove his unsuccessful claim on the basis that jury selection in this federal case may have been tainted by a Batson violation.

The case is Salters v. New York City Transit Authority, issued on August 7. The case arose from a car accident. Plaintiff was seriously injured when his car collided with a New York City Transit Authority bus driven by Jean Andre. Salters sued the Transit Authority and Andre for negligence. The case went to trial in the Eastern District of New York, where a jury returned a verdict for the defendants. On appeal, plaintiff argues that a Batson violation occurred during jury selection. 

Batson v. Kentucky is a Supreme Court ruling from 1986. Batson challenges arise when one party objects that her opponent is striking jurors due to their race; if so, that's an equal protection violation. When that happens, the opposing lawyer must give the judge a race-neutral justification for striking the Black juror. If that reason is a pretext -- such as when it lacks credibility or does not make sense -- the trial judge can return the rejected juror to the jury pool. Batson challenges are unpleasant because opposing counsel, who may have gotten along with their adversary during the case, is now accusing opposing counsel of using racial tactics to gain an advantage during trial. Many Batson challenges fail, as the lawyer can usually articulate a race-neutral reason for excluding the Black juror. But there is a procedure that the court must follow when someone makes a Batson challenge, and that procedure was not accomplished here. 

During jury selection, defense counsel used all three of his peremptory challenges against three Black prospective jurors—Jurors 8, 16, and 17. Salters's lawyer objected under Batson, arguing that the strikes were racially motivated. The magistrate judge required defense counsel to provide race-neutral explanations. But the explanations weresubjective. Counsel said Juror 8 appeared “very simply educated” and might have difficulty understanding expert testimony. Juror 16 was a home health aide, which counsel thought might make her sympathetic toward disabled or elderly people. Juror 17 “seemed a little out of it” and might not understand the evidence.

The judge rejected the Batson challenge, holding she did not think counsel struck Juror 17 because he was Black and that counsel had articulated race-neutral reasons. She also noted that two Black jurors remained on the jury. The judge's statement that defense counsel did not strike the juror because he was Black referred specifically to Juror 17. The judge's reference to “race neutral reasons” did not establish she had determined that the explanations for all three strikes were genuine rather than pretextual. The Second Circuit cites the Supreme Court's 2026 decision in Pitchford v. Cain, which reiterated that Batson's third step requires the trial court to determine whether the asserted reasons for the strikes were the actual reasons or instead were pretextual.

The Court of Appeals (Lohier, Lynch and Menashi in dissent) rejected the idea that the presence of two Black jurors on the final jury solved the problem. The fact that other Black jurors remain on a jury does not, by itself, defeat a Batson claim. Since defense counsel had already exhausted his peremptory challenges, the judge could not know whether counsel would have struck the remaining Black jurors had additional challenges been available.

Plaintiff does not automatically get a new trial. Instead, the case returns to the trial court for a Batson reconstruction hearing. The district court must determine whether the challenged strikes were discriminatory. If the passage of time or other circumstances make that determination impossible or unreliable, then plaintiff gets a new trial.