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. Bossan, 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.

What the Supreme Court did in the transgender athletics case

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

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

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

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

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

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

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

 

What the Supreme Court did in the birthright citizenship case

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

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

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

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

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

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

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