No attorneys' fees despite winning preliminary injunction

This is an interesting attorneys' fees decision that says that New Yorkers who were able to force the state to allow them have a wedding ceremony at the height of the COVID-19 crisis cannot recover attorneys' fees because they technically were not prevailing parties -- even though the Northern District of New York granted them an injunction so they could proceed with the wedding.

The case DiMartile v. Hochul, issued on September 15. After the pandemic came about in spring 2020, New York restricted in-person events to 50 people for non-essential gatherings, including weddings. But other venues, including restaurants, could have more people under the state's regulations. This meant fewer people could attend the weddings. An equal protection lawsuit followed, and the NDNY issued a preliminary injunction, determining that plaintiffs had a likelihood of success on the merits and plaintiffs would suffer irreparable harm without the injunction. Thanks to the district court ruling, one of the plaintiff couples had the wedding as they had planned. The preliminary injunction process was expedited, however, and the Court of Appeals vacated the injunction on the state's emergency appeal. The appeal ultimately was dismissed as moot, as one couple had already had their wedding, and another couple decided against proceeding with the wedding while the restraints remained in place "regardless of the outcome of the appeal."

The Second Circuit held years ago (Haley v. Pataki, 106 F.3d 478 (1997)) that certain preliminary injunction rulings on the merits entitle the plaintiff to attorneys' fees, as the merits-based rulings make them a prevailing party. That is why plaintiffs in this case moved for attorneys' fees. But the district court held, and the Second Circuit agrees, that the plaintiffs are not prevailing parties based on a Supreme Court ruling, Sole v. Wyner, 551 U.S. 74 (2007), which holds that "transient" preliminary injunction rulings reached after an expedited process does not permit an award of attorneys' fees. 

What hurts the plaintiffs in this case is that the preliminary injunction process was expedited, and the Court of Appeals stayed the district court's preliminary injunction. While two of the plaintiffs actually got married in the presence of more than 50 people thanks to the preliminary injunction, they still cannot get around the fact that the Court of Appeals stay undid the injunction. The prevailing party analysis in this case, thanks to the Sole ruling from the Supreme Court, is loaded with nooks and crannies, like an English muffin. As the Court of Appeals (Livingston, Carney and Bianco) mentions in this ruling, plaintiffs' counsel actually researched this very issue while the proceedings were ongoing, perhaps unsure if they were going to recover any fees for all their work, which did after all, result in a useful victory for their clients.

Bloomberg campaign workers lose breach of contract case

These plaintiffs were hired to work on Mike Bloomberg's presidential campaign in 2020. That campaign crashed and burned long before Election Day, however. What the campaign ended prematurely, the campaign stopped paying plaintiffs. They sue for fraudulent inducement and promissory estoppel.

The case is Cordova v. Mike Bloomberg 2020, a summary order issued on September 19. There are 50 plaintiffs in this case. Recall that Bloomberg ran for president in 2020 to take on another New York City businessman, Donald Trump. Bloomberg thought his tenure as New York City mayor were impressive enough to win the Democratic Party nomination. Democratic Party voters rejected Bloomberg and the campaign workers were let go when the campaign ended.

"Plaintiffs allege that Defendants recruited them to the job by promising employment through November 2020, but reneged on that promise when the Campaign dismissed Plaintiffs shortly after Bloomberg withdrew from the race in March of 2020." This case was dismissed under Rule 12(b)(6), which allows the trial court reject any case pre-discovery if it fails to assert a cause of action. The Court of Appeals agrees this case cannot proceed beyond the pleading stage. 

Under the fraudulent inducement and promissory estoppel theory, the plaintiff must show they reasonably relied on a representation or promise to their detriment. The Court of Appeals says plaintiffs cannot assert such a claim because, without an employment contract, New York is an at-will employment state, which means you can be fired or let go at any time for any reason so long as that reason is specifically prohibited by statute.

The Court of Appeals (Leval, Chin and Perez) observes that plaintiffs are reframing their theory of liability, but that effort fails. "Recasting the continued employment claim as a “specific opportunity to work on the general election for the ultimate Democratic nominee” through November 2020, does not avoid the dooming at-will language. Under these circumstances, future promises of continued employment cannot be the basis for Plaintiffs’ fraudulent inducement or promissory estoppel claims." Nor can plaintiffs argue that the campaign modified the at-will status by an oral contractual promise to provide continued employment until November 2020. Not only does the written contract of employment prohibit oral modification, but plaintiffs' offer letters also state they would be at-will employees. 

While a no-oral-modification clause may not count if the plaintiffs can show partial performance of the agreement to modify or when one party has induced the other party to rely on an oral modification, giving rise to promissory estoppel. These exceptions will not save the case, the Court of Appeals says. "Although Plaintiffs allege that they took action as a consequence of the promise of continued employment until November 2020, they point to no conduct that is 'unequivocally referable to the oral modification' or that is 'inconsistent with the agreement as written.'”

Sex discrimination claims are reinstated against Fordham University

A business professor at Fordham University has prevailed at the Second Circuit and reinstated her equal pay claim. The Court of Appeals applies a recent decision holding that equal pay claims under Title VII are not held to the strict standards guiding the Equal Pay Act.

The case is Solomon v. Fordham University, a summary order issued on September 5. This case was dismissed under Rule 12(6)(6), which means the case never reached discovery before the trial court rejected the complaint for failure to state a claim. But the district court got a few things wrong, the Court of Appeals (Calabresi, Carney and Lee) says, including rejecting certain allegations as time-barred and holding that plaintiff did not identify adequate comparators in support of her pay discrimination claim.

First, the statute of limitations. For hostile work environment claims, courts will consider allegations of sexism that pre-date the 300-day statute of limitations under Title VII. (An EEOC charge in New York must be filed within 300 days of the discriminatory act). The theory, as endorsed by the Supreme Court, is that a hostile work does not always consist of discrete acts but comments and other incidents that take place over time and often extend more than 300 days. This is settled law ever since the Supreme Court decided National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). But even with the older acts thrown into the equation, the Second Circuit finds, plaintiff does not have a hostile work environment claim because "her allegations concern events occurring over the course of 19 years, involving different individuals and varying kinds of incidents."

The older acts of hostility, however, allow plaintiff to proceed with her other discrimination and retaliation claims. The case returns to the district court to reconsider those claims in light of the background evidence. While that evidence may not in itself support a claim for damages, it is still relevant background evidence for purposes of determining whether plaintiff has viable discrimination and retaliation claims. 

The equal pay claim also returns to the district court. Under the Equal Pay Act, plaintiffs must show their comparators had identical jobs as the plaintiff and that they were paid more money. But equal pay claims under Title VII do not require that high-level comparison. The Second Circuit so held in Lenzi v. Systemax, Inc., 944 F.3d 87 (2d Cir. 2019). Lenzi opens the door for more equal pay claims. Here is the Second Circuit's reasoning on this claim:

The district court erred in concluding that Solomon failed to identify similarly situated comparators, and thus did not sufficiently plead an EPA claim or a Title VII claim. As discussed above, she alleged that she and the tenured male professors were paid different wages, though they had the same job responsibilities, were subject to the same evaluation standards, and were in the same practice area (Management Systems).

More proof that the City law is different from Title VII

This case demonstrates who the New York City Human Rights Law is quite different from federal employment law. If you want to bring a sexual harassment case under federal law, the harassment must be severe or pervasive. Under the City law, the plaintiff only has to show she was treated "less well" because she was a woman, and she loses the case only if the harassment was trivial. What if the plaintiff might lose her case under federal law but wants to proceed under the City law?

The case is Domingo v. Avis Budget Group, an Appellate Division ruling issued on August 30. Plaintiff lost her discrimination and retaliation claims in federal court, which dismissed those claims on a summary judgment motion. The federal court declined to exercise jurisdiction over the City law sexual harassment claim, which prompted plaintiff to refile that claim in State Supreme Court. The State Court dismissed the City law hostile work environment claim, but it did so under the federal standard. That ruling is revered by the Second Department.

Here are (at least some of) the facts as taken from the federal court ruling:

few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation.

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

Plaintiff testified in her deposition that, around July 6, 2017, a co-worker, Eric Roberts, asked her out on a date, stating that he could imagine what she “tasted like.” Feliz overheard Roberts’ inappropriate comment, but he did not reprimand him or otherwise take any corrective action. When plaintiff confronted Feliz about this, he threw his hands up in the air and told her to get back to work. As a supervisor, Feliz had a duty to report any harassment or discrimination that was brought to his attention.

A few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

A few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation.

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

A few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation.

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

Remember that when the City Council enacted the New York City Human Rights Law, it wanted a more plaintiff-friendly standard for hostile work environment because it knew that "severe or pervasive," adopted by the Supreme Court in 1986, was knocking out a lot of cases involving ugly sexist and racist slurs and gestures. Here is the reasoning from the Appellate Division:

the Supreme Court erred in granting dismissal of the cause of action alleging hostile work environment pursuant to CPLR 3211(a)(5). The District Court analyzed the hostile work environment claims under the standards set by Title VII and NYSHRL, and determined that those claims were neither "pervasive" nor "extraordinarily severe." Under NYCHRL, a claimant must only prove that they were "treated less well than other employees" because of their gender. As the plaintiff's allegations of sexual harassment and improper touching could constitute "more than petty slights and trivial inconveniences" without rising to the level of being severe and pervasive, Supreme Court should not have granted dismissal of this cause of action pursuant to the doctrine of collateral estoppel.

General Motors plaintiff may prevail on Title VI retaliation claim

The Court of Appeals holds that a Black woman who worked at General Motors may prevail on her claim that she suffered retaliation after complaining about extensive racial and sexual harassment at the plant in Western New York.

The case is Banks v. General Motors, issued on September 7. I write about the hostile work environment claim here. The disparate treatment analysis is here. On the retaliation claim, plaintiff was temporarily denied benefits during her medical leave. She eventually got the benefits back. But even the temporary loss of benefits may dissuade a reasonable employee from speaking out in the future because that temporary loss of money may cause significant hardship. The Supreme Court said this in Burlington Northern v. White (2006), and the Court of Appeals (Chin, Carney and Robinson) applies that holding here. The loss of benefits, even if temporarily, is not always a "petty slight" under Title VII. 

The company also deviated from its procedures in delaying plaintiff's return to work. "Delayed return to work, requiring her to undergo an additional psychiatric evaluation that delayed her return to work, which deviated from General Motors's usual practice for employees returning from leave." The company doctor referenced plaintiff's EEOC charge in making this decision, which is direct evidence. He also said the company investigation did not find anything in support of her claims "so that's over, so are you ready to come back to work?"

A word of two on how we define "direct evidence." This ruling notes that direct evidence is not simply an admission from management. It also comes in the form of strong circumstantial evidence. The Court of Appeals says that "direct evidence is that which 'demonstrates a specific link between a materially adverse action and the protected conduct, sufficient to support a finding by a reasonable fact finder that the harmful adverse action was in retaliation for the protected conduct.'" That definition derives from Mahler v. First Dakota Title Ltd. Partnership, 931 F.3d 799, 804 (8th Cir. 2019). 

 

The Court of Appeals also finds circumstantial evidence of retaliatory intent in the form of temporal proximity. The Court notes that a retaliatory response four to eight months after the protected activity can be enough to prove retaliatory intent. But I have noticed that the time-lapse can range as early as two months in some cases. The temporal proximity time-frame seems to fluctuate based on who sits on the case. The time lapse can be longer under Circuit precedent if circumstantial evidence is accompanied with direct evidence. In this case, the six month test is enough to prove retaliatory intent. 

Title VII plaintiff can prevail on disparate treatment claim against General Motors

The Court of Appeals has ruled that a Black woman who worked at a General Motors plant in Western New York can prevail on her disparate treatment claim under Title VII, in part because of stereotypical decisionmaking and deviations from company policy in the context of the plaintiff's claim that she endured a hostile work environment based on race and gender. The Court also provides interesting analysis on what constitutes an adverse action under Title VII.

The case is Banks v. General Motors, issued on September 7. The hostile work environment discussion is here. As a consequence of the work environment, plaintiff took a medical leave of absence. First, the evidence of stereotypes. In April 2014, Banks notified General Motors that she was ready to return to work. She provided a note from her treating psychiatrist and obtained approval from the plant doctor. But a General Motors psychiatrist denied her permission to return, stating she did not have the "conflict resolution skills to handle the environment" at the plant and explicitly mentioning her discrimination complaints internally and to the EEOC. This is direct evidence of discriminatory intent as the doctor's justification referred to EEOC charge, and indirect evidence in the form of racial stereotypes in suggesting that Plaintiff is the "angry black woman." 

Another stereotype: in suggesting that plaintiff's family background might explain her mental and emotional hardships that actually were caused by the hostile work environment, the doctor "asserted that Banks's complaints about discriminatory harassment were insufficient to cause her depression and anxiety and that something in her background was to blame. Implicit in this response is a negative assumption about Banks's family which -- considering that Dr. Jones had only just met Banks, and in light of her description of her happy and tight-knit family -- arguably could only have reflected racial animus." The Court of Appeals does not come out and say this but the inference is the doctor was inferring that plaintiff came from a stereotypical dysfunctional family.

 

More evidence comes in the form of deviations from company policy. Such deviations can support a disparate treatment claim. "General Motors's decision to require that Banks obtain psychiatric approval from Dr. Jones, in contravention of company policy and contrary to the approval process Banks had undergone for her prior disability leaves." Evidence shows that "obtaining approval from Dr. Jones was unusual and deviated from regular practice."

 

In addition, replacing plaintiff while she was out on leave without approval from HR violated company policy. "Significant, unexplained or systematic deviations from established policies or practices can no doubt be relative and probative circumstantial evidence of discriminatory intent." This job action was a significant deviation as people were surprised by it and thought it would create a "situation" because the transfer took place without appropriate approval. 

In short, the Court of Appeals (Chin, Robinson and Carney) finds that plaintiff suffered an adverse action, even under the Second Circuit's strict "materiality" test that considers whether the plaintiff suffered a significant change in circumstances, either through loss of pay, a demotion, termination, or a transfer that denies the plaintiff certain privileges. (The Supreme Court is evaluating whether "materiality" should factor into the adverse action analysis). The Court of Appeals holds firm on the materiality test but this decision pushes the limits of that standard in noting that no particular personnel decision is automatically excluded from serving as the basis of a cause of action under Title VII. Economic harm is not always required to make out an adverse action. The Court of Appeals emphasize that Title VII cannot suffer discrimination in the terms, conditions and privileges of employment, noting that this language takes an expansive view of what constitutes an adverse action.

Racism and sexism and General Motors plant gives rise to hostile work environment

The Court of Appeals has issued a major decision on sexual and racial harassment. This 76-page ruling restates certain principles that will be familiar to practitioners in this area and emphasizes other points in the course of vacating the grant of summary judgment and remanding this case for trial.

The case is Banks v. General Motors, issued on September 7. The Court of Appeals notes that plaintiff's work environment was polluted with numerous racial and sexist epithets, the Confederate flag was depicted on employees' vehicles and clothing, and nooses were displayed on three separate occasions near the workstations of Black employees. In one instance, after Banks dismissed an outside contractor for violating safety protocols (a decision within her discretion) a manager walked into her office, began yelling at her, and shook a thick, rolled-up document threateningly in her face. This manager was so loud and threatening that another worker was prepared to physical protect plaintiff from the manager, and the manager was loud enough to be heard 50 feet away. The manager did not appear to use explicitly bigoted language during this tirade. 

The decision also notes various stereotypical comments, such as a training exercise where the union safety representative pointed to plaintiff, who is Black, in making reference to illegal drug use. Another colleague engaged in a stereotypical "Ebonics" speaking style. Several Black or female employees told plaintiff that they had been subject to sexually offensive comments or racial epithets. So plaintiff was not the only victim of racist and sexist comments and gestures. On three separate occasions from 2006 to 2017, Black employees reported that nooses had been placed directly at or near their worksites.

I don't know how summary judgment was granted in this case, but here are the holdings, employing the familiar "totality of the circumstances" test guiding these cases. 

The harassment may be deemed severe based on the tirade from plaintiff's subordinate, who undermined her authority even without using racial comments. In context, the overall work environment, could make this a severe episode under the "severe or pervasive" test. The three nooses in 11 years may also be severe under Title VII. This is the rare case where the Court of Appeals finds that one incident may be enough to support a hostile work environment claim.

The harassment may also be deemed pervasive under Title VII because "From 2006 to 2016, Banks and other Black employees saw nooses, Confederate flags, and other racially offensive material around the plant, including a Black test dummy seated on a vehicle wearing minimal and tattered clothes [a slavery image]. As the district court recognized, Black colleagues were subjected to 'a steady barrage of racial insult and epithet.'" The court also considers incidents involving other employees in finding that plaintiff may prevail at trial. Again, we consider the whole picture in sizing up a case.

While the district court said plaintiff suffered no tangible harm, the Court (Chin, Carney and Robinson) reminds us that no psychological harm is required under Harris v. Forklift Systems, a Supreme Court ruling from 1993, and in any event plaintiff can prove tangible harm even without economic loss under Title VII, which is not limited to economic or tangible discrimination. Plaintiff took multiple medical leaves because of the hostile work environment, sought psychological treatment, took medication over stress from the hostile work environment. 

This decision is notable for (1) the Court of Appeals' emphasis on considering the totality of the circumstances in assessing the work environment, (2) its holding that the tirade and the nooses may be enough to show the harassment was "severe," and (3) its reliance on cases from around the country in driving home these points. It looks like the Court of Appeals wanted to issues a thorough ruling on these issues, making this a go-to case for racial and sexual harassment.