Court of Appeals reinstates $700,000 Title VII retaliation verdict

The Court of Appeals has reinstated a plaintiff's sex discrimination verdict, holding that the trial court had improperly thrown out the verdict because the jury was able to find that the plaintiff, a doctor working for NYU Langone, suffered a retaliatory termination because she spoke out against sex discrimination in the workplace. This ruling includes a number of interesting holdings and principles relevant to Title VII claims.

The case is Edelman v. NYU Langone Health System, issued on June 18. In September 2017, After plaintiff's three-year contract was renewed for another three-year period in 2017, an incident transpired with Joseph Antonik, the site director at Lake Success, who flailed his arms and called plaintiff a "bitch" when she complained that her contract did not require her to share an office. The next day, Plaintiff complained to HR about this sexist comment, and management immediately discussed the complaint with Antonik. A week later, another supervisor, Kaplan, who interrupted plaintiff's consultation with patients about the office-sharing plan, prompting Kaplan to tell her to "calm down" when she got upset and spoke to her in a child-like manner; this incident led to another complaint to HR, objecting specifically to the "male chauvinism" at the hospital. Plaintiff filed another discrimination complaint with HR on November 1, 2019, and she again objected on November 13, 2019 that she was the victim of retaliation over the office space issue. Her contract was not renewed on November 6, 2020, over a year following plaintiff's last discrimination complaint.

The jury reached a verdict in plaintiff's favor on the retaliation claim under federal, state, and city law, awarding her $700,000 in damages. The trial court vacated that verdict post-trial. The Court of Appeals (Walker, Robinson and Merriam) reinstates the verdict, explaining as follows:

1. After applying the "general corporate knowledge" principle in finding that the named defendants were presumably aware of plaintiff's protected activity (her discrimination complaints), the Court of Appeals turns to the causation element, emphasizing that courts must be wary about granting judgment as a matter of law in discrimination cases since these disputes often turn on circumstantial evidence; this caution is particularly critical when the jury reaches a plaintiff's verdict, the Court says. I have not seen the Court make that last point in a post-trial JMOL ruling. But it is consistent with the Second Circuit's strong deference toward the jury's assessment of the evidence. The Court rarely upsets a plaintiff's verdict on appeal.

2. The jury was able to reach a verdict against Antonik because, almost immediately after plaintiff had again complained about discrimination in the workplace, he directed the office manager to prepare records documenting plaintiff's purported "issues; the first entry was made only one day after plaintiff had followed up with HR about her complaint. While plaintiff had worked there for five years, no such log had ever been prepared before, and the log did not cite any allegations prior to her discrimination complaints. Moreover, defendants' witnesses testified that none of the "for cause" justifications in plaintiff's contract warranted the termination of her contract. The Court says, "it is difficult to discern any reason for the creation of the log and the gathering of information about Edelman other than the desire to ensure that her contract not be renewed," as defendants' issues with plaintiff were not shared with her or any supervisors. As for the year-long delay between plaintiff's protected activity and her termination, the Court invokes the "first actual opportunity to retaliate" principle, as the jury could find that defendants waited until her contract was up for renewal before retaliating against her.

3. We've got a "cat's paw" holding, which says the employer may be liable for discrimination if a discriminatory influences the adverse employment action and the final decisionmaker is negligent in relying on that input. The Court finds the decisionmaker, in following Antonik's directive to fire plaintiff, did not sufficiently double-check the adverse allegations against her, conducting only a "limited inquiry."

4. The Court finds that, in response to plaintiff's prima facie case of retaliation, management did not articulate a neutral reason for terminating her employment, as they admitted the sole basis for her termination was the information gathered by Antonik and Kaplan in support of her termination, and that information was infected by their retaliatory motives. This dispenses with any need to apply the third step of the McDonnell Douglas burden-shifting scheme: whether plaintiff was fired for pretextual reasons. It is the rare case when the Court of Appeals finds there is no need to consider whether the plaintiff was fired for pretextual reasons. This holding is similar to those finding that the jury was able to rely on direct evidence of discriminatory or retaliatory intent without considering whether the employer advanced a false reason for the adverse action.

5. As for the retaliation verdict against Kaplan, the Court says the trial court got it wrong in vacating it, as well. Kaplan also had retaliatory intent, the Court holds, because he knew about plaintiff's protected activity, he knew it was based on gender, and when he met with plaintiff about her complaint, he told her to "calm down" and spoke to her in a "condescending tone, raising his voice in a child-like manner to placate [plaintiff's] disagreement." Since Kaplan and Antonik were directly involved in the effort to gather adverse information about plaintiff which led to her termination, the jury had a basis to find against this defendant. The "calm down" evidence, along with testimony about Kaplan's "condescending" response to plaintiff's complaints, is the first time this Court, to my knowledge, has held this evidence can support a sex discrimination case.

6. This case once again tells us that the New York State Human Rights Law, amended in 2019 to relax the evidentiary standards needed to prevail, is aligned with the New York City Human Rights Law, amended in 2015 to provider greater protections to discrimination victims than available under Title VII.

 

Circuit declines to reconsider Trump sexual assault case

Late last year, the Court of Appeals sustained the verdict against President Trump, who was accused of sexually assaulting E. Jean Carroll in a Bergdorf Goodman dressing room many years ago. The jury awarded Carroll a multi-million dollar verdict. Following that trial loss, Trump's lawyers asked the Court of Appeals to rehear the case en banc, which dispenses with the usual three-judge panel and allows all of the Circuit's active judges to take up the case. En banc review is rare in the Second Circuit, and that motion was denied in this case. What makes it interesting is that two judges dissented from the en banc denial order and would have taken up the case for rehearing.

The case is Carroll v. Trump. The en banc denial order issued on June 13. Four of the judges (all appointed by President Biden) explained in denying the en banc denial that the evidentiary rulings at trial, which favored Carroll's position, were not an abuse of discretion, and that the two dissenters (both appointed by Trump) "would have us stray far from our proper role as a court of review," in part because they raise several arguments in Trump's favor that his lawyers did not pursue on appeal.

The dissenters, Judges Menashi and Park, write that the evidence, particularly evidence that the trial court excluded at trial, made it more likely that Trump did not insult Carrol with "actual malice," the high standard of proof when a public figure is sued for defamation. One example is that Trump called her allegations a "hoax" because the case was funded by people affiliated with the Democratic Party; the district court excluded this evidence and limited cross examination, however. In addition, the dissenting judges write, the trial court improperly admitted adverse character evidence under Rule 404(b) relating to prior acts of sexual misconduct attributed to Trump, including two witnesses who claimed he assaulted them and the infamous Access Hollywood tape, where Trump said famous people can get away with anything, including grabbing women "by the pussy." This evidence was admitted pursuant to revisions to the Federal Rules of Evidence, which allows the jury to hear prior bad acts in sexual abuse cases even if they are not permitted in other cases. 

Two other judges, Chin and Carney (appointed by Democratic presidents) also submit an opinion in support of the en banc denial. They write that the original three-judge panel did not delve into the "actual malice" issue because Trump's lawyers did not pursue that argument on appeal. They note further that Congress amended the rules of evidence to expand the universe of admissible evidence in sexual assault cases, and that the dissenters advance a novel interpretation of these provisions that no Circuit court has ever adopted. In addition, the Rule 403 balancing test, which requires the trial court to weigh the cost/benefit of allowing controversial evidence at trial, is largely within the trial judge's discretion, and the Court of Appeals is loathe to second-guess that judgment.

En banc is rarely granted in the Second Circuit. The Court generally defers to the judgment of any given three-judge panel. That does not prevent lawyers from seeking en banc review. We all think our case is strong enough to merit a full-court hearing. When the Second Circuit denies such a motion, and the judges issue their own opinions about the merits of such a petition, we learn something about the judge's individual views on how the law should be interpreted. One lesson is that there are no easy answers in applying federal law, including the rules of evidence. 

The presence of a lengthy dissent in this case on the en banc petition makes it almost a certainty that Trump's lawyers will ask the Supreme Court to hear the case. If the Court takes the case, it will be the first time the Court has addressed the amendments to the Federal Rules of Evidence on the admissibility of certain evidence in sexual assault cases.

 

The unpleasant truth about attorneys' fees

Lawyers who handle civil rights case on behalf of plaintiffs know two things: first, their client don't have much money, if any. Second, if you win the case, the losing side pays your attorneys' fees, sort of like a second judgment against the losing defendant. This is how plaintiff-side lawyers pay the bills. But winners do not always recover fees. And that is an unpleasant fact.

The case is Knights v. City University of New York, a summary order issued on June 17. Plaintiff was a contract employee at CUNY, where he was accused on sexual harassment. A CUNY investigator substantiated the claims, resulting in plaintiff's termination, but when plaintiff instituted a name-clearing arbitration proceeding to challenge the findings, CUNY decided to rescind the termination, pay him for the remaining 13 days of his term of employment, and remove any reference to the incident from his personnel file. The arbitration was dismissed as moot, but plaintiff filed a muti-million lawsuit in the Eastern District of New York, where a jury found in his favor but awarded him only one dollar.

Following a successful plaintiff's verdict, the lawyer will next move for attorneys' fees. Normally, the attorney will recover fees. But there is a major exception, recognized by the Supreme Court in Farrar v. Hobby, 506 U.S. 103 (1992), and the Second Circuit in Pino v. Locascio, 101 F.3d 235 (2d Cir. 1996): a one dollar verdict usually entitles the lawyer to no attorneys' fees at all. Yes, the plaintiff was a "prevailing party," but the nominal damages proves the plaintiff did not prove an essential element of his claim for monetary relief.

The district court nonetheless awarded plaintiff $75,000 in attorneys' fees on the basis that CUNY acted in bad faith in the way it handled the sexual harassment allegations against plaintiff. The district court originally awarded $75,000 in fees but the Court of Appeals in August 2024 vacated that ruling and ordered the trial court to further explain its justification for that ruling. On remand, the trial court did provide a justification and again awarded plaintiff $75,000 in fees. The district court stated:

I thus believe that CUNY had acted in bad faith in successfully employing its mootness gambit to abort the arbitration and Knights’ entitlement to his name-clearing hearing by reinstating him with back pay, thereby precluding him from his constitutional right to tell his side of this “he said, she said” story. I simply could not in good conscience condone CUNY's manipulative behavior and penalize Knights’ attorney for engaging in six years of unnecessary litigation without any compensation.

4I therefore consider the unique facts of this case to be tantamount to a rare example of when counsel fees are justified for a constitutional violation, even if no new rule of law resulted from the litigation. Moreover, I do not view depriving one of his constitutional entitlement to a name-clearing hearing as inconsequential.

The state appeals again. The Court of Appeals (Nardini, Lee and Merriam) finds the district court abused its discretion: there is no "bad faith" exception to the rule announced in Farrar v. Hobby. While bad faith might support a sanctions finding against the losing party, that does not mean bad faith alone can entitle the prevailing plaintiff to attorneys' fees. The $75,000 in fees are erased and plaintiff's counsel will recover nothing, despite winning the case at trial.

Non-violent felons can be stripped of their firearms

This is the golden age of gun litigation. In 2007, the Supreme Court said for the first time in the Heller case that the Second Amendment protects the right of private gun ownership, and in 2022, the Court held in the Bruen case that gun laws violate the Second Amendment unless comparable laws were in place when the amendment was adopted in 1791. Bruen makes it harder to regulate guns, but some gun-plaintiffs will still lose their cases. This is one such case.

The case is Zherka v. Bondi, issued on June 9, two years after oral argument Plaintiff was denied a gun permit because he is a convicted felon. He argues the Second Amendment is no barrier to gun ownership because he was not convicted of a violent felony. His conviction relates to making a false statement to a bank and signing a false income tax return. According to the Second Circuit (Lynch, Carney and Perez), he "defrauded federally insured banks of tens of millions of dollars and flouted the tax laws of this country to the tune of over one million dollars," landing him in jail for 37 months and three years of supervised release. He also paid $8.5 million in fines. That background description of plaintiff's life does not bode well for his case. Courts will emphasize these facts as a prelude to a defense victory.

In this case, the defendant is Pam Bondi, the attorney general. She is a defendant in name only. Zherka is really suing the United States, arguing that the federal statute cannot apply to him because he is not violent. This is an attractive argument. You do not want guns in the hands of violent people. Tax and other fraud is bad, but it's not street violence. Since this case was argued in 2023, before the current Justice Department took office, it was defended by the Biden Justice Department. I wonder what would have happened to this case if the current administration was defending this case.

As I mentioned, plaintiff can win the case if the historical tradition of firearm regulations renders the federal statute constitutional as to Zherka. This requires federal judges to serve as historians, giving new life to old treatises and law review articles. Judges are allowed to review laws post-dating 1791 in performing the "historical tradition" analysis. Over the years, Congress has made it illegal for felons to own a gun, not just for crimes of violence but for crimes punishable by one years' imprisonment. The Court notes that other federal circuits have held that the constitutional "founders likely would have considered disarmament permissible as punishment for a felony conviction since they passed laws instituting the death penalty and forfeiture of a perpetrator's entire estate as punishment for both nonviolent and violent felonies." The Court also notes that early American laws demonstrated that legislatures had broad authority to regulate firearms based on their status, i.e., political dissenters and racial minorities, suggesting that gun regulations back then did not turn on the propensity for violence, even if these early laws were morally reprehensible. Judge Lynch concludes as follows:

Because legislatures at or near the Founding had the authority to pass laws disarming large classes of people based on status alone, we conclude that the Second Amendment does not bar Congress from passing laws that disarm convicted felons, regardless of whether the crime of conviction is nonviolent.

We acknowledge and are sympathetic to the fact that felon-in-possession laws have contributed to the mass incarceration crisis and its associated racial inequalities.61 It may well be that there are sound policy reasons for restoring Section 925(c), or some similar regime, to effective operation. But that judgment is for Congress. The test that Bruen requires us to apply uses history as its guide, not policy concerns. Our task here is solely to follow the history.

This issue will reach the Supreme Court, maybe through this case. The Bruen framework is difficult for lower courts to apply, resulting in legal analysis that judges normally never engage in. This decision is loaded with historical discussion about old gun laws. All new Supreme Court rulings leave numerous unanswered questions. This case is one of them

Third Department holds student was denied a fair hearing in sexual assault case

Students who sue their universities for due process violations arising from in-house discipline have an uphill battle. These cases usually lose, as the courts find the university may generally comply with their disciplinary rules, even if they do not comply with their internal procedures to the letter. This plaintiff wins his case, however, demonstrating that the university denied him a fair shot at challenging a sexual assault allegation.

The case is Bibler v. State University at Albany, a Third Department ruling issued on June 5. A female student claimed that plaintiff had kissed and touched her against his will. Plaintiff said it was consensual. The university held a proceeding in response to the accuser's allegations, sustaining the charge and expelling plaintiff. Plaintiff wins the appeal, as he was denied a fair hearing.

These disciplinary hearings are not like trials. Courts hold that "there is a limited right to cross-examine witnesses generally," as that is not regarded as "an essential requirement of due process in school disciplinary hearings." However, cases hold, if the university does allow for cross-examination, or other procedural rights not compelled under state law, then the university must substantially comply with those procedures. In this case, the accuser did not testify (and therefore was not cross-examined) and the panel that ruled against plaintiff credited the accuser's unsworn written accusation against plaintiff. The panel thus denied plaintiff a fair hearing on the issue of whether the sexual encounters were consensual. Not only was plaintiff denied due process, but there was no substantial evidence to support the adverse findings against him.

Another problem with the hearing: the disciplinary panel did not apply the proper definition of "consent" under the state Eduction Law. Under the law, "consent" can be given by words or actions as long as the words or actions give "clear permission regarding willingness to engage in sexual activity." Silence or lack of resistance is not consent under the statute. Since the disciplinary panel said that only "verbal consent" could demonstrate the accuser's willingness to engage in sexual activity, it did not properly adhere to the "consent" definition under state law. This provides the plaintiff another avenue toward victory. SUNY is directed to reinstate plaintiff as a student. 

Eastern District of New York awards sexual harassment plaintiff $1.3 million in damages

A trial judge in the Eastern District of New York has sustained as hostile work environment verdict and ruled the plaintiff, who endured years of sexist flyers, comments, and gestures from supervisors, may recover $1 million in compensatory damages and $300,000 in punitive damages.

The case is Russo v. Tuttnauer USA Company Ltd, 21-cv-01720, 2025 WL 1604063 (E.D.N.Y. June 6, 2025). The case was tried in January 2025. Frederick K. Brewington, Esq., tried the case. Along with Scott Korenbaum, I handled the post-trial motions. The factual portion of the ruling reveals a locker-room styled workplace where supervisors left anonymous flyers in Russo's office depicting sexist and generally vulgar comments about Russo and other female coworkers. We also have some gestures/actions that are too provocative to describe here. Here is how the district court (Hon. Joan M. Azrack) handled the issues:

1. One defendant, Basile, argued that he could not be held liable under the New York State Human Rights Law because the harassment attributed to him predated the statute of limitations. While some of the harassment occurred prior to August 15, 2017, the jury was able to find that, in early 2018, Basile himself gave plaintiff an "anonymous" flyer that made a sexist reference to a roll of toilet paper shortly after she complained to Basile about the lack of toilet paper in the women's bathroom. The jury was able to assume that Basile was responsible for this flyer. Since this missive was similar in tone and message to the sexist flyers that pre- and post-dated the August 15, 2017 statute of limitations, the jury was able to find that Basile aided-and-abetted the harassment, and that his toilet paper flyer was part of a continuing violation. Basile also sent sexist emails to plaintiff prior to August 15, 2017. Also, before and after August 15, 2017, Basile, a supervisor, did not investigate plaintiff's complaints about the work environment or intervene when others in his presence made sexist comments about female employees; Basile himself made sexist comments, as well. All of this was part of the continuing violation, even if some of the harassment predated August 15, 2017.

2. Since the jury awarded $2.5 million for pain and suffering, defendants sought a remittitur. The district court agrees this verdict is excessive under New York law. In doing so, the court allocates all the damages under state law (less one dollar under Title VII) which does not cap such damages; that procedure is appropriate when the plaintiff sues under state and federal law. Judge Azrack finds this case is comparable to other "egregious" cases under the three-part matrix adopted by the Second Circuit. Cases that fall into that category can reach $1 million in pain and suffering, including Turley v. ISG Lackawanna, 774 F.3d 140 (2d Cir. 2014), where the plaintiff was awarded $1.4 million in 2025 dollars, and Zeno v. Pine Plains Central School District, 702 F.3d 655 (2d Cir. 2012), where the Title VI student-plaintiff recovered $1.56 million in damages (in 2025 dollars) for student-on-student bullying. We do not see too many $1 million employment discrimination verdicts sustained post-trial, but Russo's case joins that limited universe. The reason for this, the district court holds, is that Russo put on extensive evidence of her pain and suffering, including panic attacks and medication, and trial court put on a treating physician and lay corroborators on the extent of Russo's pain and suffering. 

3. As for punitive damages, the question here is whether Russo may reach the full $300,000 cap under Title VII. Without arguing that the evidence did not entitle the plaintiff to punitive damages, Defendants instead claimed the company was too small for that cap and that plaintiff may only recover $50,000. But, the trial court held, we have to include the hundreds of employees working for the parent company, based in Israel. The trial court applies a complicated analysis in determining whether the plaintiff may point to the employer's foreign workforce in reaching the $300,000 cap. The court also applies the "integrated enterprise" cases in determining whether to aggregate all the employees for this purpose. Since everyone in the company answered to the home office in Israel, and the parent company made the decision to terminate the plaintiff's employment, Tuttauer USA operated as the sales-arm to the parent company. The $300,000 cap, reserved for the largest employers, Title VII, applies here. 

Supreme Court rejects heightened prima facie framework for "majority" plaintiffs

On June 5, the Supreme Court issued Ames v. Ohio Dept. of YouthServices, which holds that Title VII did not authorize the Sixth Circuit’s requirement that “majority” plaintiffs satisfy a heightened pleading burden to assert a prima facie case of discrimination under Title VII. As is often the case, we also get an interesting and provocative concurrence from Justice Thomas, joined by Justice Gorsuch.

The plaintiff in Ames is a heterosexual woman who was denied a program administrator position. She claimed the defendant instead hired a gay man for the position. Ames claimed this personnel action violated Title VII’s prohibition against sexual orientation discrimination. The Sixth Circuit held the plaintiff did not plead a prima facie case because failed to assert “background circumstances to support the suspicion that the defendant is the unusual employer who discriminates against the majority.” The Supreme Court holds this heightened pleading burden is incorrect with a plain textual reading of the statute. Four other Circuits have similarly interpreted Title VII: the Seventh, Eighth, Tenth and D.C. Circuits. Writing for a unanimous Court, Justice Jackson states as follows:

 

● “As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs. Rather, the provision makes it unlawful ‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’” 

 

● “By establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”

 

● Not only have prior Supreme Court rulings suggested that all Title VII classes have equal protection under the statute, but “[t]he ‘background circumstances’ rule also ignores our instruction to avoid inflexible applications of McDonnell Douglas’s first prong. This Court has repeatedly explained that the ‘precise requirements of a prima facie case can vary depending on the context and were never intended to be rigid, mechanized, or ritualistic.’” Yet, in violation of this principle, the “background circumstances” rule “uniformly subject[s] all majority-group plaintiffs to the same, highly specific evidentiary standard in every case.” (emphasis in original). As the Court “has long rejected such ‘inflexible formulation[s]’ of the prima facie standard in disparate-treatment cases,” it holds that all classes of people are held to the same test in asserting a prima facie case.

 

This ruling is the latest in a trend at the Supreme Court, at least in the Title VII context, to dispense with complex, non-textual analyses in favor of a "plain reading" of the statute. We saw this in Bostock v. Clayton County (2020), which held that Title VII prohibits discrimination on the basis of sexual orientation and transgender status. The analysis in Bostock applied the plain terms of the statute and said that this discrimination is a form of sex discrimination. Then, in 2024, the Court held in Muldrow v. City of St. Louis, that "adverse actions" under Title VII needn't be "material" or "significant" to violate the statute, as the statute does not support such a legal standard. 

Justices Thomas and Gorsuch concur in the Ames ruling. Thomas writes that the prima facie rule rejected in this case was the product of "improper judicial lawmaking" and "lacks any basis in the text of Title VII." He goes on to highlight the adverse consequences of the "background circumstances" rule, stating that it forced courts to decide whether the plaintiff is a member of a majority or minority group, as some plaintiffs live in majority Black cities and others are mixed-race. In a footnote, Thomas further states that the "background circumstances" rule improperly assumes that discrimination against majority groups is sufficiently "unusual" to warrant a different prima facie test, as "American employers have long been 'obsessed' with 'diversity, equity, and inclusion' initiatives and affirmative action plans," placing them under pressure "to discriminate in favor of members of so-called minority groups."

 

Perhaps more interesting, the concurrence provides a lengthy attack on the familiar McDonnell-Douglas burden shifting model that courts have been using since 1973 to resolve employment discrimination cases. If you've read this far, you know that burden-shifting scheme: plaintiff must show a prima facie case and then attack the employer's articulated justification for the adverse action as pretextual." Thomas argues this judge-made model is confusing and does not work, in part because it does not square with summary judgment principles. If the Court were to overturn the McDonnell-Douglas model, that would be a major event in the lives of employment discrimination lawyers. The concurrence does not offer an alternative evidentiary model.