Second Circuit sustains FLSA verdict

The Court of Appeals has sustained a bench verdict in favor of FLSA wage-and-hour plaintiffs who claimed their employer denied them proper wages and then retaliated against them after they objected to this illegal treatment.

The case is Vazquez v. 142 Knickerbocker Enterprises, a summary order issued on July 8. I assisted in briefing the appeal. The case was brought by Catholic Migration Services and Main Street Legal Services, operated by CUNY Law School, my almer mater. 

The plaintiffs worked at a car wash in Queens. On the wages claim, the Court says, "During the relevant period—November 2007 through April 2014—the applicable minimum wage was $7.15 per hour. See NYLL § 652(1). On July 24, 2009, the minimum wage increased to $7.25 per hour. On December 31, 2013, it increased to $8.00 per hour. State law requires employers to pay employees one-and-one-half times the regular hourly rate for all hours exceeding 40 per week. The evidence at trial supported the conclusion of the district court that [defendant] Azoulay regularly underpaid the plaintiffs."

Plaintiffs proved their case in part through their own testimony, since Defendants' payroll records were incomplete. While management is required to maintain good records, when they don't the trial courts can look elsewhere to prove the plaintiff's earnings. The Court (Lynch, Menashi and Rakoff [D.J.]) further found that management appropriated the plaintiffs' tips. We call that tip-stealing.

We also have a retaliation claim, not uncommon in FLSA and State Labor Law claims. After the plaintiffs brought this lawsuit, Azoulay "wrote to the court indicating that he had reported the plaintiffs to the IRS, the [Social Security Administration], the FBI, and the New York Attorney General’s office for criminal violations. On appeal, Azoulay argues that his actions were not retaliatory but a 'reasonable attempt to meet legal obligations during litigation.'" You read that correctly, the defendant admitted this retaliation to the court, While defendant tried to explain away his actions, the trial court was not obligated to accept that defense, and the trial court's findings on whether defendants' actions were retaliatory will not be upset on appeal unless that finding is completely off-the-wall. Since federal judges issue rulings that usually find support in the record or resolve disputed factual inferences, the retaliation verdict is sustained.

What the Supreme Court did in the transgender athletics case

The Supreme Court has ruled that the states may prevent transgender girls from competing with other girls on the soccer, basketball and other teams. This ruling interprets Title IX (the educational discrimination statute) and the Equal Protection Clause of the U.S. Constitution.

The case is West Virginia v. BPJ, issued on June 30. The transgender/sports question has found its way into the culture wars. It used to be gay rights, but those issues -- at least in the marriage and employment context -- are settled. The Court ruled in 2015 that the Equal Protection Clause requires the states to recognize same-sex marriage, and it ruled in 2020 that Title VII of the Civil Rights Act of 1964 makes it illegal to fire gay and transgender employees. 

But Title IX sports is a different issue, the Court says, because when the statute was enacted in 1972 and then amended over the years, Congress intended that the sex assigned at birth is your sex for purposes of high school sports. In addition, says Justice Kavanaugh writing for the majority, regulations issued under Title IX recognize that biological differences between men and women will have an effect on competitiveness and safety if we are talking about contact sports. As for safety, consider the injury risks if we allow transgender girls compete in girls' sports. As for competitiveness, Kavanaugh says, consider how sports is a zero-sum game, where roster spots are finite and a biological male may take the place of someone else on the girls' soccer team.

The equal protection argument carries a different analysis, but the same result. Under equal protection principles, discrimination on the basis of sex is only legal if the government advances an important justification for the discrimination, and the policy in placed is substantially related to that legitimate interest. We call that "intermediate scrutiny." As opposed to "strict scrutiny" in reviewing racial distinctions created by statute or regulations. The Court says that student safety and competitive fairness principles represent important governmental interests, at least when it comes to high school sports. And the refusal to allow transgender girls to play on the girls' teams is substantially related to that governmental interest. May sex-based classifications fails under intermediate scrutiny, but not this one. Kavanaugh positions himself as an authority on youth sports, and recall he coached girls' basketball before he joined the Supreme Court. He recognizes the joys and anguish of high school sports and says that "anyone who thinks that [soccer, basketball, field hockey, lacrosse, and ice hockey] are not contact sports has not witnessed a game recently." Take it from Kavanaugh, these sports are not for the faint of heart.

A brief concurrence from Justice Thomas makes his clear his skepticism of all the issues relating to transgender status, stating that "'gender dysphoria' is a mutable mental state that is the object of psychiatric treatment," and that "Men and boys with gender dysphoria are not women or girls, even if they think they are." To play around with the definitions for boys and girls and man and woman is to "obscure reality" and to "lie to the public and cease to treat or fellow citizens 'as equals.'" It's a "no" from Justice Thomas on this issue.

Justice Sotomayer dissents on the equal protection issue, claiming the majority is jumping the gun and should have remanded this case for more fact-finding on the legal and factual issues. 

This litigation implicates deeply sensitive, contentious, and evolving issues. These circumstances demand exercising judicial restraint, not rushing to answer conclusively difficult questions without sufficient evidentiary development. In opting otherwise, the majority extends great sympathy to those it favors: the young cisgender girls and women who play sports. I share that sympathy. Playing sports can lead to benefits that are immeasurable, and many are understandably invested in ensuring that competition stays fair and safe. Because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions, I respectfully dissent. 

 

What the Supreme Court did in the birthright citizenship case

The Supreme Court has ruled that the Fourteenth Amendment ensures that everyone born in the United States -- even if their parents are not authorized to be in this country -- are American citizens. This ruling resolves a contentious political and legal debate that accelerated when Donald Trump became President and said that the children of "illegal" immigrants are not citizens.

The case is Trump v. Barbara, issued on June 30. The Fourteenth Amendment, enacted following the Civil War, states as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." What does this mean? For the longest time, it was assumed that if you are born here, no matter who your parents are (with few exceptions, such if your parents are diplomats), then you are a citizen. But many legal issues that we thought were settled are not settled. For instance, the Second Amendment lie dormant for decades until the Supreme Court clarified in 2008 that it protects an individual right of gun ownership. 

Chief Justice Roberts writes for the 6-3 majority, though bear in mind that Justice Kavanaugh rules in favor of citizenship but not based on his interpretation of the Fourteenth Amendment but a federal statute. So, on the constitutional issue, this is a 5-4 ruling, remarkably close for an issue that most of us took for granted until Trump issued an Executive Order on January 20, 2025, the first day of his second term, stating that the children of parents who are unlawfully or temporarily present in the United States do not qualify for citizenship.

Roberts reviews the historical record and finds that under English common law (including case law and related legal precedents), children "born within the [sovereign's] dominions owed a natural "allegiance" to the sovereign who protected them at birth. This was the case regardless of how "momentous and uncertain" their presence. These children were "natural born subjects" under the English crown. As Roberts sees it, "this view crossed the Atlantic with the colonists -- and was adopted with little fanfare after the [American] Revolution, as "subjects' of the sovereign became 'citizens' of the States." This was true in all 13 original states. Scholarship in 1838 held that by "the doctrine of natural allegiance," all "who were born within the jurisdiction of a State" were citizens. 

Moreover, Roberts observed, once immigrants started coming to the United States after its founding, emigres from the Old World were "assured that their children would be American citizens by birth alone." A seminal case from New York in 1844 held as such. This principle was colorblind, notwithstanding the Dred Scott decision in 1857 that said Blacks are not American citizens; that ruling was overturned by the Fourteenth Amendment. The Citizenship Clause, set forth in the Fourteenth Amendment, "mirrored the common law's criteria for citizenship." 

What about the "subject to the jurisdiction" language in the Citizenship Clause? That language is not clear on its face and provides an opening for opponents to argue that many foreigners, who came to the U.S. without authorization, cannot give birth to citizens here. As Roberts sees it, under Nineteenth Century dictionary definitions (a common source for the Supreme Court in divining the meaning of statutes and constitutional provisions), "to be 'subject to' the jurisdiction of the United States ... is to 'live under' its 'dominion.'" He adds, "The Citizenship Clause uses jurisdiction in its ordinary sense -- referring to the power of the United States to govern those within its territory." That would necessarily include so-called "illegal" immigrants and others here temporarily.   

Justice Thomas dissents, primarily arguing that the Citizenship Clause was only intended to benefit the newly-freed slaves. Justice Alito writes in dissent that "the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country," Alito then offers an extensive history of "illegal" immigration in the United States, particularly from the 1970s onward, concluding that "the Court's interpretation preserves a powerful incentive to enter or remain in this country illegally," as "[i]mmigrants naturally prefer affluent countries where economic opportunities are available," and that other than Canada, "the United States will be the only affluent nation where birth alone is enough to establish citizenship." Alito concludes that the majority ruling is "a mistake that will seriously affect the country's future." 

National origin discrimination claim fails despite manager's impatience with plaintiff's accent

The Court of Appeals has held that an employee with a strong foreign accent cannot sue for wrongful termination after her supervisor angrily complained that he could not understand her and ultimately terminated her employment.

The case is Matthew v. JP Morgan Chase, a summary order issued on June 30. I briefed and argued the appeal. 

This case was dismissed on a Rule 12 motion, so the facts in the Complaint, along with the plaintiff's affidavit, stated as follows: "Matthew alleged that her supervisor, district manager John Wolf,
'complained that he couldn’t understand anything [Matthew] was saying because of [her] accent,' but that her other supervisors did not have similar complaints." Plaintiff alleged that Wolf “informed [her], in nearly every single conversation that [they] had, both in person and over the phone, that he could not understand [Matthew] because of [her] Trinidadian accent,” and that “Wolf expressed clear anger and annoyance to [Matthew] that [she] spoke with an accent.”

Since Wolf played a role in plaintiff's termination, she sued for national origin discrimination. The district court and the Court of Appeals (Lynch, Menashi and Bianco) affirms, and the case is over. We argued that Wolf's hostility was enough to assert a plausible discrimination claim, especially since other managers did not give plaintiff a hard time over had accent. The Court of Appeals disagrees, reasoning as follows:

While mistreatment related to accents can have “a nexus to” national-origin discrimination, Zheng-Smith v. Nassau Health Care Corp., 2021 WL 4097316, at *3 (2d Cir. Sept. 9, 2021) (summary order), allegations concerning the former must still “allow the court to draw the reasonable inference that” the alleged mistreatment was motivated by invidious discrimination. Construed liberally, the allegations here suggest, at best, that Wolf had difficulty understanding Matthew because of her accent on multiple occasions and was consequently angry or annoyed at Matthew due to that difficulty. As the district court noted, she does not allege that he mimicked or mocked her or that he used derogatory words or phrases during these conversations. Nor has Matthew “demonstrate[d] circumstances giving rise to an inference of discrimination by alleging that [s]he was treated less favorably than similarly situated employees.”

The Second Circuit has not yet published a precedential ruling on when hostility or anger toward the plaintiff's accent is enough to support a discrimination claim. This ruling suggests the plaintiff cannot simply allege that a manager fixated on the plaintiff's accent, even if other managers did not have a problem with it.

Threat to impose costs under arbitration clause may be retaliatory

The Appellate Division holds that an employer violates the New York State Human Rights Law when it threatens a discrimination plaintiff that his SDHR charge must be litigated in arbitration and that, if the plaintiff does not pursue that route, he may be subject to costs and attorneys' fees.

The case is In the Matter of Charter Communications v. Eisen, a Fourth Department ruling issued on June 26. This case went to an evidentiary hearing at the SDHR, which ruled in the plaintiff's favor, awarding him $7,500 for pain and suffering and imposing a $30,000 fine on the employer. Charter appealed this ruling to the Fourth Department, which sides with the SDHR and upholds the finding of liability and damages, as well as the fine.

Here are the facts:

After he was fired from his employment with petitioner, complainant filed a complaint with SDHR alleging age discrimination. Petitioner responded by sending a letter to complainant in September 2019 stating that, because of a binding arbitration agreement between the parties, complainant could not pursue his claim against petitioner through a court action. Petitioner advised complainant to "be aware" that the arbitration agreement entitled petitioner to costs and fees, including attorneys' fees, incurred if petitioner was forced to seek court action to compel complainant to resolve his dispute through arbitration instead of litigation. Petitioner then filed the instant complaint alleging age discrimination and retaliation. Thereafter, while the complaint was pending, petitioner sent complainant two additional letters in June 2020 and March 2021 asking complainant to withdraw his complaint with SDHR because of the arbitration agreement.

It is not uncommon for corporate defendants to tell the plaintiff that the claim falls within the arbitration clause. What probably made the difference was Charter's threat that plaintiff might have to pay costs and attorneys' fees if he did not proceed to arbitration. Under the legal standard, such threats "could have dissuaded a reasonable person from" pursuing the discrimination complaint.   

Supreme Court strikes down another gun regulation

The Supreme Court has issued another Second Amendment ruling, finding that Hawaii cannot enforce a law that prevents gun-owners from entering private property with their guns without the property owner's express authorization. 

The case is Wolford v. Lopez, issued on June 25. This is another 6-3 ruling that applies the Bruen decision, issued by the Court in 2022, and which makes it much more difficult to enact and enforce gun laws. Under Bruen, gun laws are unconstitutional under the Second Amendment unless the government can prove there is a historical analogue the law dating to the country's founding. This is a complex constitutional formula, and may be the most "originalist" interpretation of the Constitution we've seen from the Supreme Court. Bruen requires that lawyers and judges review laws dating to the Eighteenth Century in determining if today's laws comport with laws that were in place back in 1791.

Justice Alito says the Hawaii law "departs sharply from the standard common law rule on access to private property held open to the public. Under that rule, everyone, including those lawfully carrying firearms, may enter unless expressly prohibited from doing so. By contrast, under the new Hawaii law, no one carrying a firearm may enter without the property owner's express authorization. The effect of the new rule is to impose severe restrictions on the daily activities of residents who have satisfied the State's rigorous requirements for the issuance of a carry permit."

The majority considers the practical application of the Hawaii rule: when Johnny-citizen leaves the house in the morning, he must   

When these permit holders leave home in the morning, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, “big box” stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats. This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives. 

In dissent, writing for the three Democratic-appointed Justices, Justice Jackson sees the case very differently. "To hear the majority tell it, Hawaii’s law is a blatant attempt to end-run our Second Amendment precedents. But the statute at issue does no such thing. Instead, it fairly applies a first principle of property law—the right to exclude—and does no harm to the Second Amendment." 

 

NY Court of Appeals upholds mandatory retirement age for state judges

The New York Court of Appeals holds that the state's mandatory retirement age for judges -- 70 years -- is constitutional. The argument was that the retirement age -- in place since 1777 -- gets the kibosh due tot the recently-enacted Equal Rights Amendment adopted in 2024. The Court of Appeals disagrees.

The case is Miller v. State of New York, issued on June 18. The Court observes that the ERA does not specifically address the mandatory retirement, which is a strike against the plaintiffs' argument. The Court concludes that the ERA was never intended to repeal the age-limit. We got some classic statutory construction in support of this holding. Here is the summary:

The voters have spoken clearly since 1777 that judges may serve until they reach the constitutional age of retirement. That age limit has never been eliminated. For more than two centuries, the voters only modified the age limit, first during the Reconstruction era by raising the age to 70, and again in 1961, when the voters approved a certification process for certain judges and justices to serve to age 76. That limit has been fixed since then, with no ballot initiative to eliminate it and a failed effort in 2013 to raise the age to 80. The retirement age is part of New York's constitutional design. The State's voters, Legislature, members of the bench, and judicial candidates have understood that judicial service is limited in this specific way. Article I, § 11, as amended by the ERA, did not repeal article VI, § 25 (b). The retirement mandate stands. 

Not that I would expect anything less from the New York Court of Appeals, but this ruling represents remarkable self-restraint. The judges on this Court are directly affected by the retirement age, and as they grow older, they must realize that 70 is no barrier to effective judging. There are federal judges who sit on the bench through their 80's and 90's. Seventy is not what it used to be.