Union worker wins disability discrimination appeal

The Second Circuit has reinstated a disability discrimination claim, holding the jury may find that an employer denied the plaintiff a reasonable accommodation necessitated by a serious vein condition that made it painful for him to complete his driving assignments without a modification to his work schedule. This ruling highlights a little-known principle under the ADA: the plaintiff's accommodation may entail placing him into someone else's position if that remedy aligns with the usual company practice.

The case is Raymond v. 1199WEIU National Benefit Fund, issued on July 23. Plaintiff worked for a labor union, driving around the New York City metropolitan area educating union members about union pensions and benefits. But due to his vein condition, plaintiff's doctor said he could not sit for more than 30 minutes at a time, prompting defendant to remove from his service area the four facilities that were furthest away from plaintiff's home, but still requiring plaintiff to drive more than 30 minutes to other facilities. The district court dismissed the case on summary judgment. The Court of Appeals (Sack, Perez and Preska [D.J.]) brings the case back.

The Second Circuit notes that an accommodation must be "effective" even if it is not perfect. While the district court held in granting summary judgment for the union that its response to the doctor's note sufficed under the ADA because the union took action to reduce the plaintiff's workload, the Second Circuit says this was the wrong analysis. It is not enough that the employer took some action to assist the plaintiff; the employer must take effective action. In the end, the accommodation must allow the plaintiff to perform his essential job functions. The Circuit notes that it is often up to the jury to decide if the employer's accommodation was sufficiently effect to satisfy the ADA. 

Plaintiff's case is reinstated on this issue for several reasons. First, while the district court held the driving assignment requested by plaintiff to accommodate his disability -- known as Area J -- was not plausible because it was not materially different from the employer's accommodation of removing the four farthest facilities from plaintiff's assignment, "there is evidence in the record supporting an inference that Area J requires less driving," at least based on the maps in the record. This is the kind of factual detail that may get you a trial in an ADA claim. 

Moreover, despite defendant's claim that plaintiff was actually requesting that the union create a new position to accommodate his disability (the law generally does not require the employer to create a new position for that purpose), the jury may find that plaintiff was not actually asking management to do that. Instead, the record supports the inference that he was instead only requesting an new assignment while keeping his old job title. The ADA does not even define "position" or "assignment." 

More interestingly, the Court holds that even the position that plaintiff requested was already filled (the ADA does not normally require the employer to bump someone out of their position to accommodate the plaintiff), if company practice allowed for this kind of personnel management, then the accommodation may be reasonable. In other words, "if NBF frequently shuffles employees into non-vacant positions, then Raymond's reassignment might be a plausible accommodation." The only authority for this holding is a Supreme Court ruling, U.S. Airways v. Barnett, 535 U.S. 391 (2002), which held that while a requested accommodation may be unreasonable where it requires an employer to bypass its seniority system, that same accommodation may be reasonable if the employer frequently ignores the seniority system such that “one more departure . . . will not likely make a difference.”

Disability discrimination case is reinstated on appeal

The Court of Appeals has reinstated a disability discrimination claim against a New York City agency, holding that the plaintiff sufficiently alleges the City failed to accommodate his disability. But plaintiff loses his appeal to the extent he asserted a retaliation claim under federal and city law.

The case is Cangro v. New York City Department of Finance, issued on July 24. I will start with the retaliation claim. 

Plaintiff alleges that, after he complained to the EEOC about disability discrimination, the City retaliated by telling him that he was being investigated over his requests for disability discrimination and by denying him a promotion. The problem with the first allegation -- being advised that the City was investigating him -- is that there was no actual investigation and a City official apologized for telling him otherwise, and that it was apparently just a "rumor." While plaintiff claimed the phantom investigation was distressing and that it was intended to intimidate him, the Second Circuit says this was not an adverse action under the Supreme Court's recent decision in Muldrow v. City of St. Louis, which relaxed the adverse action test in holding the plaintiff need only assert "some harm" as opposed to a "material" harm, which was the Second Circuit's test for decades. But even under Muldrow, reporting a rumor to the plaintiff about an investigation is not enough to proceed with the lawsuit.

Plaintiff also asserts retaliation in the form of a promotion denial. If true, that's an adverse action under Muldrow. But not for plaintiff. The problem is the timing of the promotion denial. The Court of Appeals reasons it this way: "the intervals between the 2024denial of a promotion for Cangro and the two acts of Cangro for which the PSAC asserts NYCDOF was retaliating -- i.e., 11 months after his receipt of a right-to-sue letter and more than 22 months after his request for an accommodation--were too long to support any reasonable inference that Cangro was denied a promotion in retaliation for either of his acts." Timing may support a retaliation claim, but the plaintiff needs a tighter fit in a circumstantial evidence case like this. And, while plaintiff argues that defendant's reason for the promotion denial -- the lack of financial resources -- cannot be the real reason, that factual argument is unsubstantiated.  

The good news for plaintiff is the Court of Appeals (Lohier, Kearse and Park) finds he asserts a claim for failure to accommodate his disability, multiple respiratory conditions that informed his request to work remotely from home, as the commute to and from work through public transportation affected his breathing even when he wore a mask, and because his office did not have proper ventilation.  Ultimately, plaintiff's request was denied and he asserts the City did not participate in the necessary interactive process intended to work out an acceptable accommodation.

The district court held that plaintiff fails to assert a claim because he did not sufficiently argue that his proposed accommodation would allow him to perform his essential job functions. If the accommodation still does not allow the plaintiff to perform essential job duties, then it is not a reasonable accommodation. The Second Circuit reverses, and the case will proceed to discovery, for three reasons:

First, the complaint asserts that plaintiff was able to perform essential job duties while working from home over a two year period from 2020 through 2022, the Covid-19 era. Also, even after other workers were required to return to the office when the pandemic subsided, plaintiff was still able to work from home two days per week. And third, "when Cangro requested the accommodation of working some days from his him and some days in [the agency's] Staten Island office, 'Mr. Cangro's request was supported by his manager.'" That support helps plaintiff's claim. The Court explains it this way:

the word "supported" itself, in this context, is somewhat conclusory rather than factually descriptive. But at this early stage in the litigation, drawing all inferences in Cangro's favor, a manifestation of support by Cangro's manager for the requested accommodation supports the assertion that Cangro could, with that accommodation, perform the requirements of his job. 

This holding is good for plaintiffs. The Court of Appeals held the trial court held the plaintiff to stringent pleading requirements that fall outside the Iqbal/Twombly particularly test. And, the allegation that plaintiff was able to work from home for two years without incident suggests his subsequent accommodation request may have been reasonable, especially since his manager was on board with that request. 

Fourth Department sustains $500,000 retaliation verdict

The Appellate Division, Fourth Department, has sustained a retaliation verdict in favor of a state corrections employee who was disciplined and sent off to work in Siberia after he spoke out on malfeasance at the department.

The case is Montgtari v. State of New York, issued on July 24. I briefed the appeal. A.J. Bosman, who also tried the case, argued the appeal. 

Plaintiff was a Captain of the New York State Department of Corrections and Community Supervision and a Deputy Chief of the Sex Crimes Unit (SCU) of the Office of Special Investigations. When plaintiff became the Deputy Chief, he reported overtime abuses and failure to properly investigate allegations concerning sex crimes and/or harassment. He claimed that, in retaliation for this speech, he next suffered harassment, including an administrative suspension, disciplinary charges based on false and manufactured charges, and a disciplinary suspension. After a Civil Service Law § 75 hearing, a hearing officer found that plaintiff was responsible for speeding on the Thruway, but otherwise found that all remaining charges were not sustained. Others in the department would also speed on the Thruway on company time but suffered no punishment.

Although the Hearing Officer recommended that plaintiff be restored to his position of Deputy Chief of the SCU, Annucci reassigned plaintiff to a correction facility that was more than three hours from plaintiff's residence. 

Thew jury returned verdicts in plaintiff's favor on the equal protection and First Amendment claims. The First Amendment verdict is sustained because the complaint asserts that plaintiff spoke on matters of public concern. The equal protection rationale is more complicated. The Fourth Department notes that the U.S. Supreme Court has held that government employees cannot bring "class-of-one" plaintiffs in the equal protection contest. That was the Engquist case from 2008. Class-of-one claims involve the plaintiff arguing they suffered governmental abuse or misconduct so awful that the plaintiff does not need to show he belongs to a protected class of individuals; hence the class-of-one. But there is a split in the Second Circuit on whether government employees can pursue selective enforcement claims, where you are singled out while the government looks the way for other wrongdoers. The Fourth Department adopts the reasoning in cases holding that you can bring such a lawsuit, reasoning:

We note that the Second Circuit has left open that question (see Hu v City of New York, 927 F3d 81, 100 n 5 [2d Cir 2019]) and that there is a split of authority in the district courts, as the parties here recognize (see Alaei v State Univ. of New York at Albany, 2024 WL 2941735, *15 [ND NY, June 11, 2024, No. 1:21-cv-00377(BKS/TWD)]). We are persuaded by the reasoning in Airday v City of New York (2020 WL 4015770, *2-6 [SD NY, July 16, 2020, No. 14-CV-8065 (VEC)]) that selective-enforcement claims survive after Engquist.

Defendants -- some of them the highest ranking officials in the New York correctional system -- also invoked qualified immunity. While they waived that (and other) arguments by not asserting them at trial, even if preserved, that objection fails because the Second Circuit held in 1980 that malice-based selective enforcement claims may be brought under the Equal Protection Clause making this principle clearly-established for qualified immunity purposes. 

 

Circuit reaffirms no appeal from the denial of a Rule 59 "weight of the evidence" motion

This disability discrimination case went to trial, but the plaintiff lost and his former employer won. Post-trial, plaintiff filed a motion for a new trial pursuant to Rule 59, arguing that the verdict in defendant's favor was against the weight of the evidence. The trial court denied that motion, so plaintiff appeals. Except that plaintiff has a problem: the Second Circuit, at least in this instance, is the problem.

The case is Raymond v. 1199 SEIU, issued on July 23. There are many ways to challenge an adverse verdict. The most common method is to argue post-trial that the evidence is so overwhelming that the case should not have even reached the jury. Defendants often make that argument in challenging the verdict as a whole. That's a motion under Rule 50 for judgment as a matter of law. The losing side can also move for a new trial under Rule 59, claiming the verdict was agains the weight of the evidence. That motion is rarely granted and turns on the trial court''s judgment that there just was not enough evidence for the winning side to prevail and we are going to have a do-over.

If the trial court denies the Rule 59 "weight of the evidence" motion, the next stop is the Court of Appeals. But here is the problem. Under Second Circuit law, if the trial court sets aside the verdict under Rule 59, that order can be appealed. If the trial court denies the Rule 59 "weight of the evidence" motion, that ruling cannot be appealed. 

All the other circuit courts allow you to appeal from the denial of a such a motion. But not the Second Circuit. Judge Sack notes the anomaly posed by this distinction:

the reviewability of a Rule 59(a) weight-of-the-evidence decision depends on the outcome of the district judge’s decision: If the district judge overturns the jury verdict on weight-of-the-evidence grounds, it is reviewable; if the judge upholds a jury verdict over a losing party’s motion that the verdict contravenes the weight of the evidence, that decision is not reviewable. That is, if a district court denies a Rule 59(a) motion to vacate a verdict, we cannot review that denial.

Every so often, however, the Second Circuit says that such motions under Rule 59 are appealable. But then a different panel will hold otherwise. Judge Sack notes that anomaly as well:

Our caselaw on this issue is somewhat confounding. Just last year, we concluded that there is “ambiguity in our precedents” regarding whether a district court’s denial of a Rule 59(a) motion for a new trial on weight-of-the-evidence grounds is reviewable. See Ortiz v. Stambach, 137 F.4th 48, 71 (2d Cir. 2025) (collecting cases). We doubt, though, that our precedents can be viewed that way. Instead, we conclude that our precedents firmly establish that such a denial is not reviewable on appeal. 

In this ruling, the panel (Sack, Perez and Preska [D.J.]) holds firm on the rule that you cannot appeal from the denial of a Rule 59 "weight of the evidence" motion, holding that the Court therefore has no appellate jurisdiction over this portion of plaintiff's appeal. Judge Sack says that's the rule in the Second Circuit, and the only way it's going to change is if the Supreme Court or an en band panel of the Second Circuit directs otherwise. The verdict on the disability discrimination verdict stands. 

 

Excessive force verdict for the police is upheld on appeal

The optimism associated with starting a trial will collapse when the jury returns an unfavorable verdict. When that happens, we think about the appeal, and a new round of optimism kicks in. But it is quite difficult to overturn a verdict, particularly on factual grounds, as the Court of Appeals will defer to the jury's credibility assessments. That is the problem for plaintiff in this appeal.

The case is Chapdelaine v. Desjardin, issued on July 2. This is an excessive force claim where plaintiff alleges the police used too much force and authority in restraining her after they came to the house upon a complaint that plaintiff had assaulted an elderly victim, a friend of the family. Plaintiff alleged the police knocked her to the ground while trying to place her in handcuffs. 

Excessive force claim are difficult to resolve on the papers alone, as the parties often provide conflicting accounts, requiring a jury trial. This is one of those cases, and the jury ruled in favor of the police. But that's why we have the Court of Appeals: the losing side can argue that the evidence was so overwhelming in their favor that the jury had no choice but to rule for them. But while that argument is available to you, that argument is difficult to win.

The jury is tasked with deciding who is telling the truth. There are no real legal standards guiding how to assess credibility, thought the judge will instruction the jury on this point in the jury instructions, ultimately telling the jury to use their common sense and to pay attention to consistencies and inconsistencies and facial expressions on the witness stand. The jury decides who is telling the truth, not the judge.

The Second Circuit (Chin, Lee and Robinson) finds the jury was able to find for defendants. It did not have to find for them, but it did so, and it had a basis to do so in concluding that plaintiff had charged the police, who knew that plaintiff had previously threatened others with weapons, and that plaintiff let herself fall to the ground and her cries were "theatrical for the cameras." I am sure plaintiff strongly disputes this version of events, but the jury was free to reach those conclusions. The verdict is affirmed.  

No malicious prosecution claim where criminal charges were dismissed in a compromise

This police misconduct lawsuit alleges that plaintiff was falsely arrested in a domestic dispute on Thanksgiving Day in 2018. It all happened in Connecticut. The complainant said that plaintiff pushed a houseguest to the floor. When the police showed up, plaintiff got into an argument with the officer, who smacked plaintiff's hand away when she raised her hand, and plaintiff fell to the ground, where she was handcuffed. Plaintiff was arrested for assault of an elderly victim but the charges were ultimately dismissed. Judgment for the police.

The case is Chapdelaine v. Desjardin, decided on July 2. Plaintiff's malicious prosecution claim was dismissed on summary judgment. The argument on appeal was that if the police lacked probable cause to arrest, then they may be liable for malicious prosecution. You can bring such a claim if the arrest was in fact lacking in probable cause and the case got dismissed without a conviction but -- and this is crucial -- cases hold that if the case was dismissed or withdrawn as a result of a calculated decision based on a compromise, then there is no malicious prosecution claim. When you have such a compromise, then it's not a true dismissal suggesting the plaintiff was innocent of the charge. 

In other words, the underlying criminal charge must have ended favorably for the plaintiff. That wrinkle on malicious prosecution claims knocks out plaintiff's claim because the charges against her were dismissed as a result of a compromise involving the plaintiff attending mental health treatment in exchange for the charges being dismissed. The Second Circuit reasons it this way:

The underlying state criminal matter was pending against Chapdelaine for nearly five years and the court's dismissal of the charges following her completion of a one-day diversionary program reflects a court-ordered compromise. The Connecticut Superior Court judge explained on the record that -- based on the five-year length of the case without resolution and Chapdelaine's efforts to attend mental health treatment during the pendency of the case -- the criminal charges would be dismissed contingent upon Chapdelaine's agreement to and completion of a one-day supervised diversionary program. She indeed agreed to the compromise and completed the program. 

Under these circumstances, the dismissal of Chapdelaine's criminal charges was not a favorable termination for purposes of a malicious prosecution claim. The leading case on this issue is the recent Carruthers v. Colton (2025), which held that proceedings ending in a compromise, and in particular plea dispositions, are not really the kind of "favorable termination" that allow you to sue for malicious prosecution.  

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.