2d Department strikes down Nassau County law on transgender athletes

The culture wars continue to range on Long Island. In Nassau County, the legislature passed a law prohibiting transgender women from playing team sports with those who were born as women. The New York Civil Liberties Union sued Nassau County, arguing that the law conflicts with the state law prohibition against discrimination on the basis of transgender status.

The case is Long Island Roller Rebels v. County of Nassau, issued by the Second Department on November 4. The Appellate Division strikes down the local law and says that state law guides this case. The plaintiff wins.

As background, the Roller Rebels are an adult womens' roller derby league in Nassau County that includes transgender women, intersex women, and gender-expansive women. They seek to use Nassau County facilities in playing other roller derby teams but were barred from doing so because the league has at least three transgender players. 

The case reached the Appellate Division after a State Supreme Court Justice ruled last year the local law was legal. The lower court said that biological males, regardless of transitioning, have greater athleticism and speed, strength, muscle mass, stronger hearts and greater bone density, and the local law aims to provide a safe environment for biological females. The court added that allowing transgender women to participate might be dangerous and create liability costs for the county. Since federal regulations allow schools to maintain separate teams for women and men in contact sports like roller derby. The court added that Title IX -- the sex discrimination law guiding sports -- prohibits biological men from playing sports with biological women, and that the county law is modeled after a law in Florida. On this logic, federal law preempts the state law on this issue, making the county prohibition against transgender women playing in the roller derby league legal. The lower court added that "The County does not deny transgender individuals access to the Athletic facilities."

 The Second Department rejects this reasoning in full and holds that the County law conflicts with State law prohibiting discrimination on the basis of transgender status. I do not see an analysis of federal statutes such as Title XI in the Appellate Division ruling. Unless the New York Court of Appeals takes on this case, this ruling means that transgender roller derby players may use Nassau County facilities for this competition.

 

Inmate wins disability discrimination appeal

You know, inmates have rights, too. This one filed a lawsuit over the jail's failure to accommodate his disability, among other violations. Much of the case is gone, but the Second Circuit revives his claim under the Americans with Disabilities Act. 

The case is Long v. Annucci, a summary order issued on November 3. Long, an inmate at Cape Vincent Correctional Facility, has severe osteoarthritis, degenerative changes to his lower back, and plantar fasciitis. His medical conditions caused chronic pain and difficulty walking. A prison doctor recommended orthopedic treatment and custom footwear, but Dr. David Dinello, a regional medical director, repeatedly deferred those recommendations, suggesting physical therapy and other less advanced treatments instead.

Long was required to complete Alcohol and Substance Abuse Treatment (ASAT) and Aggression Replacement Treatment (ART) programs to qualify for early release. But because of his medical problems, he was initially exempted from programming. In June 2015, he was transferred to the ASAT dormitory, where he allegedly had to walk long distances to obtain meals and medication.

In February 2016, Long requested reasonable accommodations, including specialized boots, orthotics, a shoe lift, and shorter walking distances to prison facilities and services. The following day, DOCCS transferred him to the infirmary, where he received certain mobility accommodations, including grab bars and accessible bathroom facilities. But prison officials denied his requests for specialized footwear and orthotics, which Long said were needed to participate in prison programming.

Long sued under the Eighth Amendment, the ADA, and the Rehabilitation Act. The district court granted summary judgment to defendants. On the Eighth Amendment claims, the Court of Appeals (Lee, Wesley and Jacobs) rejects Long's deliberate indifference claim against Dr. Dinello. A prisoner asserting inadequate medical care must establish both an objectively serious medical need and subjective deliberate indifference, requiring at least culpable recklessness. The Court said Long failed to establish the subjective component. Long did not dispute that Dinello believed several of his treatment decisions were medically justified. And the doctor who recommended orthopedic treatment acknowledged that physical therapy was an acceptable treatment and that Long received standard and accepted care throughout his incarceration.

Nor does Long have any basis for the conditions-of-confinement claims against three prison officials. Long cannot prove they were personally involved in the violation under Tangreti v. Bachmann, a Second Circuit ruling from a few years ago that, interpreting the famous Iqbal case, says you have to identify the wrongdoers by name in the lawsuit.. Two counselors established that they had no authority over Long's placement in the ASAT dormitory or his removal from it. The superintendent's involvement was limited to investigating grievances and affirming grievance committee decisions.

On his claims under the ADA and Rehabilitation Act, the district court misapplied the reasonable-accommodation framework. An accommodation must provide effective access to prison programs and activities. Although an accommodation need not be perfect or the inmate's preferred choice, effectiveness is essential. While the trial court said DOCCS had reasonably accommodated Long by transferring him to the infirmary. that only addressed some of plaintiff's needs. Long said that without specialized footwear, he could not meaningfully participate in early-release programming.

The Court found that Long satisfied his initial burden of identifying a facially reasonable accommodation. He had previously used specialized footwear and experienced substantial pain when walking without it. Significantly, DOCCS eventually approved his request for orthotic shoes in May 2016.

The Court also rejected the district court's characterization of the footwear request as merely a demand for specific medical treatment. Long was not claiming that DOCCS denied him medical care. Rather, he argued that the denial prevented him from accessing prison services and programs because of his disability. That is an actionable ADA and Rehabilitation Act theory.

Once Long established a facially reasonable accommodation, the burden shifted to DOCCS to demonstrate undue hardship. The district court had not properly conducted that inquiry. The case returns to the district court to apply the correct legal standard on the statutory disability discrimination claims. 

What do we learn here? While prison officials are not required to provide an inmate's preferred accommodation, they must demonstrate that the accommodation actually works or establish that the requested alternative would impose an undue hardship. The Court does pay homage to the principle that prison security, administrative concerns, and the orderly delivery of medical services are legitimate considerations in evaluating undue hardship. But those considerations must be addressed through the proper legal framework rather than simply assuming that whatever accommodations prison officials provided were reasonable.

Police officer has a viable retaliation case under the First Amendment

The Court of Appeals holds that a police officer may challenge a promotion denial that he claims was in retaliation for speaking out against possible supervisory misconduct.

The case is Beatty v. Vafeades, a summary order issued on October 26. Plaintiff was was a sergeant with police department in Nassau County. In 2017, he saw his supervisor working behind the counter at a bagel shop and eventually came to believe Vafeades owned and operated the business with two other police officers who were subordinate to Vafeades. Was this a conflict of interest? Maybe. Plaintiff reported this to Inspector Glenn Quinn, the department's second-in-command, who in turn told the Police Commissioner Charles Gennario, about it.

Months later, Vafeades replaced Gennario as Police Commissioner. Beatty says Vafeades retaliated against him for reporting the bagel-shop arrangement. Among other things, Beatty claimed that he was passed over for a promotion.

The district court dismissed the case, holding that plaintiff's speech was unprotected under the First Amendment because he did not speak as a citizen but an employee. That would make this a Garcetti case, named after the Supreme Court's 2006 ruling that public employees who speak as an employee and not as a citizen may be disciplined for their speech. The Second Circuit (Parker, Nathan, and Kaplan [D.J.]) reverses and returns this case to the Eastern District of New York for an exciting trial.

Whether plaintiff spoke as a citizen or employee turns on whether the speech ordinarily falls within the scope of the employee's responsibilities. Courts examine the employee's actual, day-to-day responsibilities rather than simply rely on formal job descriptions. We turn to Matthews v. City of New York, 779 F.3d 167 (2d Cir. 2015), where the court said a police officer who complained to commanding officers about a precinct-wide arrest spoke as a citizen, as reporting supervisory misconduct was not part of his ordinary job duties. That reasoning applies here. 

Beatty's responsibilities as a sergeant involved supervising police officers. He was not responsible for monitoring the conduct of his own supervisors, much less investigating their outside business arrangements. The department's job description confirmed that supervisory officers were accountable for the proper performance of officers under their supervision. The fact that Beatty had a general obligation to report violations of departmental rules did not change the analysis. The Matthews precedent rejected the argument that a general duty to report misconduct determines whether an employee speaks pursuant to his official duties. Otherwise, public employers could undermine First Amendment protections simply by imposing broadly worded reporting obligations on their employees.

Plaintiff also wins the appeal because his speech had a citizen analogue. Plaintiff raised the issue in person with commanding officers at police headquarters. While defendants argued that this was different from an anonymous civilian's written complaint about the same subject to the Village's human resources department, the department manual expressly permitted members of the public to lodge complaints at police headquarters with the ranking supervisory officer on duty. Complaints could be made in person, in writing, or by telephone. Since an ordinary citizen had access to the same or a similar reporting channel, plaintiff spoke as a citizen, as well.

Religious-based objection to selling bridal clothing for same-sex wedding violates state law

The First Department has sustained a State Division of Human Rights finding that a wedding business violated state law in refusing to sell a bridal jumpsuit for a same-sex wedding. The ruling rejects the business's objection that servicing the wedding would have violated their religious principles and the First Amendment.

The case is SDHR v. D. Auxilly NYC LLC, issued on October 22. Once the business proprietor realized the complainant wanted a same-sex marriage, Galbraith, the business owner, said it would not sell her the bridal jumpsuit, that making such an outfit would violate her sincerely held religious belief. The SDHR also found the business told complainant to reconsider the wedding entirely. The SDHR held a hearing in this case, and ruled against Auxilly, awarding the complainant $5,000 in damages for pain and suffering and a civil penalty in the amount of $20,000.

State law prohibits sexual orientation discrimination in public accommodations. While the Supreme Court has held in several high profile cases that businesses can deny servicing same-sex weddings under the First Amendment, that only applies when the services involve expressive conduct, like decorating a wedding cake or a website to celebrate the wedding. You may find these holds to be a stretch, but the Supreme Court has taken a broad definition of protected speech in these cases. But the First Department holds that selling a wedding garment is not expressive activity under the First Amendment, even if it might be adjusted for sizing. The business's order said at oral argument that the jumpsuit was a matter of expression, but the panel, to put it nicely, did not see it that way.  As the SDHR wrote in its appellate brief,

Galbraith, according to the parties’ stipulation of facts, is a designer and seller of “bridal and special occasion attire under the D. Auxilly brand.” However, her work, although tailored to fit the client, contains no speech element. It does not relate a “unique story” about the wearer using her original words and artwork. Although the clothing may reflect Galbraith’s considerable skill and talents, they are goods offered for sale to the general public. Galbraith’s sincerely held religious beliefs preclude same-sex marriage, but the commerce she partakes of is subject to the Human Rights Law’s requirements 

We also have ourselves a jurisdictional issue. The business was in New York, but the complaint lived in Missouri. New York law applies because the impact of the discriminatory violation transpired in New York.  

Plaintiff wins retaliation appeal against Trump's 2016 campaign

The Appellate Division has reinstated a retaliation case filed against Donald Trump's 2016 campaign, which alleges that, after its former director of Hispanic engagement sued the campaign for sex discrimination, the campaign filed an arbitration demand against her, seeking $1.5 million in damages. 

The case is Denson v. Donald J. Trump for President, Inc., issued on October 22. While plaintiff signed an NDA upon working for the campaign, a federal court later struck down the NDA as invalid and unenforceable. In this round, plaintiff argues the arbitration demand was filed in retaliation for her discrimination lawsuit. In an affidavit, the campaign's Chief Operating Officer, Glassner, asserted a good faith belief that the arbitration demand was legitimate. That was enough for State Supreme Court to dismiss this retaliation case.

The First Department reverses, and the case returns to Supreme Court for trial. The reason is that Glassner's subsequent deposition did not conclusively prove the campaign filed the arbitration claim in good faith. The Court reasons that Glassner's testimony was all over the place but not specific enough to prove as a matter of law that the campaign had a legitimate basis to proceed against plaintiff after she filed her lawsuit:

plaintiff identified sufficient evidence to raise a triable issue of fact as to whether the proffered reason was pretextual. Among other things, Mr. Glassner averred that defendant commenced the arbitration against plaintiff because it believed that plaintiff’s complaint contained “certain” disparaging and “sensationalist allegations” which “far exceeded what she was required to allege in order to state viable” discrimination causes of action against it. During his deposition two years later, however, Mr. Glassner testified that it was his personal decision to file the arbitration because he believed that every substantive paragraph of plaintiff’s complaint violated the NDA. Mr. Glassner could not describe how he distinguished between legitimate and illegitimate allegations for purposes of enforcing the NDA and could not specify which allegations were actually unnecessary for plaintiff to pursue this litigation.

Plaintiff also wins the appeal because the defendant cannot show how it suffered any real damages from her lawsuit, suggesting the $1.5 million demand was an arbitrary tactic to silence the plaintiff.

What we learn from this case is that not all affidavits in support of a summary judgment motion are enough to dismiss the case. Plaintiffs should determine whether the affidavit is sufficiently vague to permit discovery that would explore the factual basis for the otherwise untested allegations in the affidavit.

 

 

Anti-Biden Twitter critic loses federal civil rights suit alleging conspiracy to close his account

The plaintiff here was an active Twitter-poster who criticized President Biden's COVID-19 policies, challenging the shutdowns and school closures. Twitter eventually suspended him under its five-strikes-yer-out rule after determining he was tweeting misinformation about the virus. This lawsuit against the former FDA commissioner and Pfizer executives alleges that the suspension violated a federal civil rights conspiracy law. Plaintiff loses.

The case is Berenson v. Gottlieb, a summary order issued on October 20. Plaintiff says that Twitter shut him down after gaining over 200,000 followers in conspiracy with the Biden administration. Federal law does prohibit conspiracies to violate civil rights. That statute is 42 U.S.C. section 1985(3). But 1985(3) has significant limitations. It only applies when the conspiracy would violate your rights in a protected class under the Equal Protection Clause, such as a racial or class-based discriminatory motivation. Also, religious and gender discrimination. The Supreme Court has also Section 1985 might not protect political groups unless that discrimination was racially motivated. The Court of Appeals seems to protect plaintiffs who suffer conspiracies due to their political party affiliation but not because they are political opponents of the defendants.

Plaintiff loses because he asserts in the complaint that he is a Biden opponent and critic, not that he is suffering discrimination due to his political party. Also, the Second Circuit (Leval, Wesley and Bianco) holds,  he does not belong to a protected class under Section 1985(3). He belongs to a political class, not a racial, gender, or religious class. While he argues that he does belong to a racial or religious class because a disproportionate number of evangelical Christians and African-Americans support him, along with political conservatives, the Second Circuit rejects this argument as an effort to incorporate a disparate impact angle to the framework, which the Second Circuit denied in Reynolds v. Barrett, 685 F.3d 193 (2d Cir. 2012).

2d Department sustains sexual harassment finding against Boston Market

The Appellate Division has sustained a finding from the New York State Division of Human Rights that found a female employee was sexually harassed at Boston Market in Orange County. The Second Department also holds the damages and penalties were proper under the New York State HRL. The liability finding broadly interprets the Human Rights Law in that Boston Market was liable because the harasser was the plaintiff's supervisor.

The case is In the Matter of the New York State Division of Human Rights v. Boston Market Corp, issued on October 14. 

Bless Clarke was hired by Boston Market in July 2017 as a cashier, food server, and crew member, working there until April 2020. Nicholas Foreman,worked at the restaurant from October to approximately November 19, 2019. Employees recognized Foreman as the manager even though his formal managerial status was unclear. In the presence of Assistant General Manager Robert Smith, Foreman made sexually inappropriate comments to Clarke. Smith giggled at these comments but did nothing to stop them. Foreman also sometimes pinched Clarke’s leg, prompting her to tell him not to touch her. Clarke additionally observed Foreman appearing intoxicated at work and reported this to Smith, who said he would notify General Manager Michele Carbon.

On November 18, 2019, Foreman began following Clarke at work. She attempted to avoid him by moving into the dining room, but he hugged her, pinned her arms, and forcibly kissed her on the mouth. Clarke struck Foreman, ran to the bathroom, and began crying. Clarke reported the assault to Smith, who contacted Carbon. Carbon instructed Smith to send Foreman home. Smith told Clarke to remain in the bathroom while Foreman was directed to leave. Ten minutes later, Clarke emerged and discovered that Foreman was still present. He apologized and claimed he had been “just trying to take the sickness” out of her, referring to her cold. Foreman was sent home. The following day, Carbon reviewed security-camera footage of the incident and terminated Foreman's employment.

Following the harassment and assault, Clarke experienced paranoia, depression, anxiety, and panic attacks that continued at least through December 2021. She avoided public places because she feared encountering Foreman and experiencing another panic attack. She also had difficulty eating. In May 2021, she began counseling, during which she discussed the sexual harassment.

On these facts, the SDHR found Boston Market liable for sexual harassment, awarding Clarke $75,000 for pain and suffering and fining Boston Market $50,000. The Second Department, which defers to the SDHR's factual findings in these cases, holds there is substantial evidence to support the liability findings and that the damages and fine are not excessive. 

The Appellate Division does not analyze the factual record or explain how the SDHR reached its determination, but what strikes me about this case is that the SDHR prevailed even though Carbon appeared to take remedial action after learning about the sexual harassment, firing Foreman the next day after reviewing the security camera footage. But, according to SDHR's appellate brief, Boston Market lost the case because the SDHR found that Foreman was a supervisor. The brief states, "The Division found Boston Market liable for Mr. Foreman’s sexual harassment of Ms. Clarke. It reasoned that because Mr. Foreman is a supervisor, 'that harassment is attributable to Boston Market.'” SDHR appears to interpret the amended New York State HRL to permit liability in this circumstance, a departure from the prior statute (and Title VII), which required the plaintiff to show that management condoned or supported the harassment. What also clinched victory for the SDHR was that the restaurant did not stop Foreman when he had harassed Clarke on prior occasions.

To the extent an SDHR brief in the Appellate Division represents a policy pronouncement useful for other cases, here is the SDHR's analysis, departing from the First Department's interpretation of the NYSHRL as well as the Supreme Court's leading Title VII cases on this issue, Faragher and Ellerth:

the Division submits that the language of EXEC. LAW §296(1)(h), in conjunction with its legislative history and the evolution of a stricter liability standard in case law construing the state Human Rights Law in the wake of Faragher and Ellerth, weigh against the interpretation that the First Department has given this new subsection respecting vicarious liability as dependent on supervisory status. The provision of the New York City Code requiring that, in order for an employer to be liable under the City Human Rights Law, either the wrongdoer must be a supervisor or the employer condoned the discriminatory act has never had a statutory counterpart in the state Human Rights Law. 

 The Commissioner's order in this case will help plaintiffs win their cases provided the plaintiff's supervisor committed the harassment, regardless of management's response. It reads:

Effective August 12, 2019, the Human Rights Law was also amended to ensure that the provisions of the law be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws have been so construed. The amendment further mandated that exceptions to and exemptions from the provisions of the law shall be construed narrowly in order to maximize deterrence of discriminatory conduct. See Human Rights Law § 300. As a result of these amendments, the case law that developed under the prior “severe or pervasive” standard is no longer applicable to harassment cases. Harassment claims are now analyzed more like claims under the New York City Human Rights Law than federal law. See Wellner v. Montefiore Med. Ctr., 2019 WL 4081898 (S.D.N.Y. 2019)

Complainant has proven that she was sexually harassed by Foreman, who engaged in inappropriate behavior towards her throughout his employment with Boston Market by making comments about her body and undergarments and touching her legs. On November 18, 2019, Foreman attacked Complainant by hugging her and kissing her on the lips while she resisted him. Foreman’s conduct subjected Complainant to inferior terms and conditions of employment because of her sex and constituted sexual harassment under the Human Rights Law. Because Foreman was a supervisor, that harassment is attributed to Boston Market.