Friday, July 23, 2021

Ageist comments not enough to survive Rule 12(c) motion to dismiss

The Court of Appeals has held that a plaintiff failed to plausibly plead age discrimination and retaliation even though he was terminated five months after he reported that a supervisor made negative comments about his age. 

The case is Lively v. WAFRA Investment Advisory Group, issued on July 23. Plaintiff worked for this company for 21 years and was a "top performer." He alleges that a supervisor, Al-Mubaraki told company executives and others that plaintiff was "too old and that he would seek to replace Lively (and them) with younger employees." Plaintiff also alleges that this supervisor told plaintiff's son that the company "needed to replace older employees like his father with younger employees like Lively's son." The first comment took place after June 2017. The second comment happened in November 2017. In November 2017, plaintiff reported these comments about "the discriminatory pattern that was emerging" and specifically reported his supervisor's age-related comments. The HR Director expressed frustration that Al-Mubaraki continued to engage in inappropriate conduct. Another company executive told plaintiff that Al-Mubaraki's comments were intended as a joke. Plaintiff was fired in On May 1, 2018 after the company determined that he had sexually harassed a female subordinate. Plaintiff alleges this justification is false and that the female subordinate had in fact solicited plaintiff's involvement in her personal and professional life and plaintiff had no reason to know their interactions were unwelcome.

This case was dismissed under Rule 12(c), or judgment on the pleadings, which happens after the defendant files its answer. The Court of Appeals (Nardini, Park and Walker) provides a brief detour about the reasons behind Rule 12(c) (as opposed to the more common Rule 12(b)(6), where the defendant seeks to dismiss the case in lieu of an answer). The Court cites a D.C. Circuit case for the proposition that "[J]udgment on the pleadings is not appropriate if there are issues of fact which if proved would defeat recovery, even if the trial court is convinced that the party opposing the motion is unlikely to prevail at trial.” In other words, the Second Circuit says, "a court may consider undisputed allegations of fact on a Rule 12(c) motion under the same standard as Rule 12(b)(6), but it may not use a motion for judgment on the pleadings to weigh disputed factual allegations."

On the discrimination claim, after noting the plaintiff must prove that age was the "but-for" cause of the adverse decision, citing recent Supreme Court authority, Comcast Corp. v. National Assn. of African Am.-Owned Media, 140 S.Ct. 1009 (2020), the Second Circuit states that "the 'but-for causation standard applies not only at trial but at the pleading stage as well." A footnote in this opinion suggests the Second Circuit's analysis in Littlejohn v. City of New York, 795 F.3d  297 (2d Cir. 2015), which offers a generous legal standard for plaintiffs on a Rule 12(b)(6) motion, may not survive the Supreme Court's analysis in Comcast

The age-related comments lie at the heart of the case. But these are "stray remarks," the Court of Appeals holds, for the following reasons:

First, Al-Mubaraki made only two remarks, and Lively provides details for only one of those remarks.   More significantly, Lively has failed to raise a reasonable inference that there is 'a direct link' between the age-related  remarks and his termination. Al-Mubaraki’s comments were separated by several months and occurred five and ten months before Lively’s termination."

Second,  "Lively has alleged no facts concerning 'other indicia of discrimination' that would make Al-Mubaraki’s remarks 'bear a  more ominous significance.' To the contrary, the complaint alleges that Lively was promoted and received positive feedback from Al-Mubaraki after Al-Mubaraki made the discriminatory remarks."

Third, "Lively [does not] allege that Al-Mubaraki played any role, much less 'a substantial role[,] in the decision to terminate.' Instead, the complaint states that WAFRA’s HR Director and Chief   Administrative Officer handled his termination." This third factor is a way for plaintiffs to distinguish this case from their own cases.

Fourth, "Lively’s own complaint describes the stated reason for his termination—i.e., 'violating company policies and the code of ethics prohibiting sex discrimination and harassment in the workplace.' Even without considering the truth of the allegations contained in Kraut’s EEOC and  federal court complaints, the district court could properly have taken judicial notice of the fact that  those complaints had been filed. Moreover, Lively’s termination letter, which was attached as an  exhibit to Defendants’ answer, was also within the universe of materials the district court could consider on a Rule 12(c) motion as a document incorporated by reference into the complaint. In light of that factual context, Lively’s conclusory narrative that the sexual harassment allegation 'was nothing
more  than  a  pretext  to  fire  him  for  being  an  older  worker'  is  implausible."

The retaliation claim is also gone. The Court of Appeals holds that plaintiff has not plausibly plead that his protected activity was the "but for" cause of his termination. Borrowing from Title VII caselaw, the Court states that "ADEA retaliation claims likewise require 'proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.'” 

The Court holds that plaintiff "has alleged no facts suggesting that the reporting of Al-Mubaraki's comments was the 'reason' for  his termination. He alleges no evidence (direct or circumstantial) of retaliatory motive based on his reporting of Al-Mubaraki’s comments. Instead, he “has simply asserted in conclusory  fashion that ‘as a result of reporting Al-Mubaraki’s misconduct WAFRA seized the opportunity to terminate Lively based on the basis of a false accusation of sex discrimination and harassment.’” 

What about temporal proximity? Isn't that enough to satisfy the pleading burden? The Court of Appeals holds that plaintiff has not alleged temporal proximity between his reports and his termination sufficient to raise a plausible inference of causation." For that holding, the Court cites Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018), which stated in turn:

Relying on Grant v. Bethlehem Steel Corporation, 622 F.2d 43 (2d Cir. 1980), Duplan contends that the more than two-year delay between his first EEOC charge and these alleged adverse employment actions does not break the chain of causation because the City retaliated against him at the "first available opportunity" to do so in that particular manner. Appellant's Br. at 26. Even assuming that Grant establishes the principle that causation can be shown on that theory, however, it would be difficult to apply it to the facts that Duplan has alleged. In part, that problem is caused by the lengthy gap in time between his initial protected act and the ensuing instances of retaliation that were properly exhausted by his 2014 complaint. For instance, Duplan does not specify whether he was eligible for or received other raises between his 2011 complaints and the 2013 raise he was denied. It is also unclear how we could apply a "first available opportunity" theory to what Duplan alleges to be a persistent pattern of denying his applications for new positions when he has only exhausted the last denial in that chain.




Wednesday, July 21, 2021

Court of Appeals sustains West Point's disciplinary procedures

It is quite prestigious to matriculate at West Point Military Academy. The plaintiff in this case became a West Point cadet, but he was kicked out of the program and ordered to pay the government more than $200,000 in restitution. He challenges the due process leading up to his removal, but that challenge fails.

The case is Doolen v. Wormuth, issued on July 20. West Point has an elaborate mechanism for cadet discipline, including remedial measures short of expulsion, formal disciplinary proceedings that include an evidentiary hearing, and appellate rights within the system. The Second Circuit devotes close to seven pages describing the process. 

Plaintiff was subjected to discipline relating to alcohol violations and excessive demerits. The Court says he snuck alcohol into the barracks and engaged in a loud and profane argument with other cadets; that argument became physical. After he was removed as a cadet, he returned following a Judge Advocate General finding about procedural deficiencies associated with that expulsion. But when plaintiff returned, defendants initiated disciplinary proceedings again, the investigating officer ruled against him, determining he lacks the "attributes essential to lead as an officer of the United States Army." The IO also said plaintiff is immature and selfish. Plaintiff was expelled from West Point and ordered to recoup the government for the cost of education.

While courts are loathe to second-guess military determinations under the Intra-Military Immunity Doctrine, one exception that rule involves the failure to follow its mandatory regulations in cases that substantially affect a service member. That exception applies here, so plaintiff wins that hurdle.

While plaintiff is able to overcome the immunity hurdle, he loses the war, so to speak. The Court of Appeals finds that West Point provides enough due process to protect cadets from unfair discipline. These procedures suffice both prior to discipline and after a disciplinary violation is found. We call that pre-  and post-deprivation procedures.

Monday, July 19, 2021

Police bribery conviction is upheld

This man was charged with the most unusual crime I have ever seen in reviewing Second Circuit opinions: he was a go-between corrupt police officers and criminal defendants. He would provide expensive gifts to the high-ranking officers in exchange for using their influence to obtain lenient treatment for the defendants. Bribery through gifts, not money. The defendant was convicted at trial, and the Court of Appeals affirms.

The case is United States v. Reichberg, issued on June 15. Here is how the Court of Appeals describes the arrangement:

The benefits the officers received took many forms, including trips on private jets and luxury hotel stays with prostitutes; football, basketball,  and  hockey tickets  worth  tens  of  thousands  of  dollars; international travel arrangements to Israel  and  the Dominican Republic;  home  improvements  worth  thousands  of  dollars; and approximately  $60,000  in  business  steered  toward  certain  of  the officers’ private security companies.
Reichberg  and  [co-defendant] Rechnitz’s  largesse  obtained  a  host  of  favors from  NYPD  officers.   For  example,  one  of  Reichberg’s  clients  was arrested  three  separate times,  but  each  time  was  released  from custody after Reichberg contacted NYPD officers. [Co-defendant] Grant exerted his influence to secure the processing and approval of gun licenses, even when those applications were deficient or the applicants unqualified for  the  type  of  license  sought. Grant  conferred  this  benefit  on Reichberg, who obtained a full-carry gun license without the licensing division bothering to investigate whether he qualified for one.  Banks secured  Grant’s  promotion  to  Inspector  in  the  19th  Precinct,  on Manhattan’s   Upper   East   Side—a   strategic   posting   valuable   to Reichberg   and Rechnitz   because   of   its   proximity   to   Rechnitz’s Manhattan  office.    Officers  also provided  police  rides  and  police escorts  to  Reichberg  and  Rechnitz’s  friends  to  cut through  traffic, arranged  for  an  NYPD  police  boat  to  give  rides  to  attendees  at  a barbecue Reichberg hosted, and arranged for an NYPD helicopter to do a flyover of a cocktail cruise organized by Reichberg.

Defendant raises a series of issues on appeal. One alleges a Fourth Amendment violation over the unlawful seizure of electronic evidence, which I imagine is how many of these bribes were proven at trial. It appears the government sent to Reichberg's co-defendants electronic discovery that was seized from his devices, but in doing so it sent them more information than they were entitled to, and that this extra evidence hurt his case. But the trial court found, and the Court of Appeals agrees, that the government released this information in error, and not on purpose. Fourth Amendment suppression remedies are available to deter the government from conducting unlawful seizures in the future. That interpretation of the exclusionary rule was articulated by the Supreme Court Herring v. United States, 555 U.S. 135 (2009), a controversial 5-4 ruling from the Supreme Court. What it means for this case is that since the data was mistakenly released, there is no Fourth Amendment violation because it was done in the good faith that Reichberg was consenting to the release of all of this data.

Friday, July 16, 2021

Decision rejecting religious organizations' challenge to Vimeo's policies is vacated

In March, the Court of Appeals held that a religious organization could not sue Vimeo, an Internet video platform, for religious discrimination after Vimeo removed its videos on the ground that the religious organization  violated Vimeo's policies barring the promotion of "sexual orientation change efforts." The case interpreted the Communications Decency Act, which states that no provider or user of an interactive computer service shall be held liable for:

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or any action taken to enable or make available to information content providers or others the technical means to restrict access to [the] material described.

The March ruling has now been vacated. The Court of Appeals has granted the religious organization's petition for rehearing. The order was issued on July 15. The district court's ruling, which also rejected the organization's argument, remains in place.

Age discrimination claim against Department of Education fails

The Second Circuit hears its fair share of employment discrimination cases, but very few of them result in precedential, published opinions that favor the plaintiff. This is another case where the plaintiff loses by summary affirmance. What it means is the plaintiff lost the appeal shortly after oral argument because the Court of Appeals thought this was a routine case with an easy answer.

The case is Reiss v. Hernandez, issued on July 14. Plaintiff claims age discrimination motivated the Department of Education's determination to terminate her employment. Upon such an allegation, the courts require management to articulate a reason for the adverse decision. The plaintiff then has to show this was not the real reason and that age discrimination was the true motive. The plaintiff's burden is more difficult to satisfy than you might think. The courts tend to be deferential to managerial prerogative. 

The Department says plaintiff was let go because she has ineffective ratings as a teacher. Plaintiff says the older teachers got worse ratings than the younger teachers. The court's reasoning tells us how particularized the evidence of age discrimination must be in cases like this:

Although Reiss asserted that older teachers were given disproportionately worse ratings than younger teachers, she did not provide any evidence that younger teachers who received effective ratings were similarly situated to Reiss, an above-40-year-old teacher who received ineffective ratings. Nor did Reiss adduce evidence to support her contention that Defendants pushed out older teachers for younger teachers, let alone evidence that younger teachers in fact replaced older teachers at P.S. 123.

Plaintiff needed to identify comparator, younger teachers who were a close match to her employment status in order to prove age discrimination. The Court of Appeals (Parker, Cabranes and Newman) says does not have this evidence. 

While plaintiff claims the principal made ageist comments, the Court of Appeals sweeps this evidence aside, reasoning that "were insufficient to create a triable issue of fact that Defendants’
justification was merely pretext." The district court ruling states that "Reiss specifically claims that Principal Hernandez told her to retire because she was ‘too old’ to be effective at anything.” The district court said this was not enough to win the case, as this comment "appears to be a mischaracterization. In the Second Amended Complaint, Reiss alleges that Principal Hernandez wanted her to retire because in [Principal Hernandez’s] world [Reiss] was ‘too old’ to be effective at anything.' In other words, Reiss now attributes that comment directly to Principal Hernandez, whereas it initially served as Reiss’s subjective view of Principal Hernandez’s state of mind." 

Would a jury interpret this evidence differently? Most federal complaints are not filed under oath, but the comment plaintiff highlights on appeal was probably from her sworn deposition. But the Court of Appeals agrees with the district court, and what might appear to be "smoking gun" evidence is not enough to survive summary judgment, and the case is over.

Tuesday, July 13, 2021

FMLA may not save your position if the company eliminates your job in a reduction-in-force

The Family and Medical Leave Act was enacted in 1993. It allows employees to take up to 12 weeks of unpaid leave if they or a close family member have to tend to a serious medical condition. FMLA also allows employees to sue if their rights are violated under the Act. This case went to trial and the plaintiff lost. The Court of Appeals sustains the verdict against him.

The case is Barger v. First Data Corp., a summary order issued on July 6. Plaintiff took FMLA leave and tried to return to work with a doctor's note. But defendant told plaintiff that his position was eliminated. True, FMLA prevents management from denying a return-to-work under certain circumstances, but FMLA leave does not guarantee that you will have your job back upon return from leave. Instead, the statute says that restored employees are not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been been entitled had the employee not taken leave." This language often applies when the employee's position is eliminated when he is out of FMLA leave.

Plaintiff loses because, during FMLA leave, the company enacted a reduction-in-force, or a RIF. At trial, the company put on evidence that, during this time, it eliminated the top 10% of its most highly compensated positions, including plaintiff's position, for which he earned more than $70,000 per year. Before plaintiff tried to return to work, his position was already included in the RIF list. The Court of Appeals (Bianco, Carney and Komitee [D.J.]) says the jury credited this evidence, which is why plaintiff lost at trial, and the Court of Appeals will not second-guess the jury's factual findings on appeal. That is a fact of appellate life, even if plaintiff in fact had better evidence on this issue than management did. We let the jury decide what happened.

Thursday, July 8, 2021

Manslaughter defendant wins new trial on habeas challenge to state-court conviction.

Habeas corpus petitions filed in federal court challenging state court convictions became much harder to win after Congress enacted a law in 1996 that said only state court convictions that violate clearly-established constitutional law (as determined by the Supreme Court) may be overturned in a habeas proceeding. That meant that actual but arguable constitutional violations in state court are not enough. To win, you have to show a clear constitutional violation. The inmate in this case overcomes that hurdle in the Court of Appeals, and he gets a new trial.

The case is Garlick v. Lee, issued on June 11. Garlick was convicted of first-degree manslaughter after someone was found stabbed and beaten to death in a Bronx apartment building. The detective ordered an autopsy of the victim. The report stated the victim was stabbed in the heart. The defendant claimed he was trying to defend himself and his girlfriend during a fight. At trial, the state called a witness to introduce the autopsy report, but this witness did not author the report and was not involved in the autopsy. Defendant objected on Sixth Amendment grounds that he was unable to confront the author and autopsy doctor. This report played a huge part of the state's strategy at trial, and defendant was convicted. 

On appeal to the First Department in the state appellate system, the Appellate Division said there was no Sixth Amendment violation because the report did not actually link defendant to the commission of the crime, and the report was not testimonial. On the habeas petition to federal court, the EDNY said the First Department's ruling violated clearly-established constitutional law, and the Second Circuit (Wesley, Sullivan and Menashi) agrees. Defendant wins the appeal.

Defendant wins because settled Supreme Court authority, Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), said forensic reports cannot be admitted in evidence at trial without an opportunity to cross-examine the person who wrote them. That case did not involve an autopsy report; it concerned forensic tests showing the defendant possessed drugs. A few years later, the Court said that even forensic reports that were prepared by "mere scriveners of machine-generated results" are inadmissible without cross-examination. These cases help defendant because (1) the First Department did not honor the principle that the autopsy report is testimonial and therefore needs confrontation at trial; (2) it was prepared in support of an active police investigation; (3) the report was used at trial to exclude someone else as the attacker; and (4) the Supreme Court has held that even forensic reports that do not directly accuse the defendant of committing the crime are still subject to cross-examination under the Sixth Amendment. This error was not harmless because the report excludes someone else as the attacker and there was no other medical evidence to pin the crime on defendant. Nor were there any witnesses who claimed that defendant stabbed the victim to death. The autopsy report was the strongest evidence against defendant. 

Wednesday, July 7, 2021

Inmate not required to pay court fees under PLRA

This case may not be of interest to lawyers who handle federal appeals, but it's important for inmates who handle their cases pro se. The Second Circuit holds that a civil detainee who completed his criminal sentence is not subject to the fee provisions of the Prison Litigation Reform Act.

The case is Jones v. Cuomo, issued on June 22. Plaintiff was convicted of sexual abuse and attempted rape. Following his criminal sentence, he was sent to civil confinement under the Mental Health Law. This often happens to sex offenders. While in civil confinement, plaintiff brought suit under Section 1983 challenging aspects of his commitment proceedings and the confinement itself. 

Under the PLRA, inmates have to pay their court costs from their inmate account. But when plaintiff filed this lawsuit, he was not a "prisoner" under the PLRA because he was in civil confinement, not jail. He was not locked up for the criminal offense any longer but instead detained because it was determined that he remains a danger to the public. A fine distinction to be sure, but that's how the Court interprets the plain language of the statute. Other circuits have interpreted the PLRA similarly, and now the Second Circuit (Menashi, Parker and Lohier) joins them. Under this ruling, plaintiff gets his fees back, as they were originally deducted from his account when he brought this appeal.

Interesting footnote at the start of the opinion for Second Circuit junkies. The Court decides to make this a published, presidential opinion rather than a summary order, even though this was a motion to restore fees and not a true appeal on the merits. The Court does not normally publish rulings like this, but it finds that motions like this will not normally be filed when inmates have counsel (this one does not have a lawyer), and this issue may recur in the future with other inmates. 

Tuesday, July 6, 2021

Supreme Court limits the scope of the Voting Rights Act

The Supreme Court last week interpreted the Voting Rights Act in a manner that upheld two Arizona voting mechanisms that plaintiffs claim had a disparate impact on Black voters. In doing so, the Court looked at the VRA with fresh eyes, devising a legal standard that gives additional leeway to states that have imposed voting restrictions in recent years.

The case is Brnovich v. Democratic National Committee, issued on July 1. Section 2 of the VRA was at issue in this case. That provision says the VRA is violated only where "the political processes leading to nomination or election" are not "equally open to participation" by members of a protected class, including Black voters, "in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." This is the disparate impact provision of the VRA, where challenges to election procedures can prevail even if the lawmakers who put the measures in place did intend to discriminate on the basis of race. 

Writing for the 6-3 majority, Justice Alito focuses on the "equally open" and "less opportunity" language in Section 2. From the majority's vantage point, there is almost no federal case law that interprets this language, even though the VRA was passed in 1965. So the majority in part cites dictionary definitions of the relevant language to determine what the statute means. 

Justice Alito states that, according to Random House and Webster's, the term "open" means "without restrictions as to who may participate" or "requiring no special status, identification, or permit for entry or participation." "Opportunity" means "a combination of circumstances, time, and place suitable or favorable for a particular activity or action." Section 2 also asks us to consider the "totality of the circumstances" in determining whether a VRA violation exists. The majority then lists six factors in solving Section 2 cases:

1. "The size of the burden imposed by a challenged voting rule is highly relevant." This means that we discount the ordinary burdens associated with voting, such as travel to the polling place, following directions for the voting machines, etc. 

2. We look to that voting practices that were in place in 1982, when Congress incorporated the disparate impact liability provisions into the statute. "The burdens associated with the rules in widespread use when Section 2 was adopted are therefore useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally 'open' or furnishing an equal 'opportunity' to vote in the sense meant by Section 2." Put another way, "the degree to which a challenged rule has a long pedigree or is in widespread use in the United States is a circumstance that must be taken into account."

3. "The size of any disparities in a rule's impact on members of different racial or ethnic groups is also an important factor to consider. Small disparities are less likely than large ones to indicate that a system is not equally open." "Some disparity" may not be enough to prove a disparate impact.

4. In addition, and I regard this as the most important factor devised by the majority, courts must consider the opportunities provided by a State's entire system of voting when assessing the burden imposed by a challenged provision." This means that "where a State provides multiple ways to vote, any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other available means." So that if one voting mechanism, such as absentee balloting, has a disparate impact, other available voting mechanisms that have no disparate impact for which voters can avail themselves will diminish the strength of the disparate impact case. This is the language in the opinion that will most likely doom the challenges to restrictive election rules in the Republican states. While this is an important part of the ruing, it is not supported by any case law or statutory language. Nor is there any dictionary definition to support it.

5. We also consider "the strength of the state interests served by a challenged voting rule." Rules that are supported by a strong state interest are less likely to be struck down under Section 2. One strong state interest is fraud, and another is ensuring that votes are cast without intimidation or undue influence. 

These factors lead the majority to uphold two Arizona provisions: a rule that makes it illegal for people to vote out-of-precinct, i.e., you live in the third precinct but show up in the fourth precinct to cast your vote. Voting in the right precinct, even without fraud, is among the "usual burdens of voting." Even if it is difficult to find the right precinct, the state offers other ways to vote, such as early balloting. This reasoning will most likely kill off many Section 2 challenges as there are always other ways to vote. The problem is that if someone does not take advantage of early balloting for some reason and they show up at the wrong precinct, the vote will not count. The majority also says the disparate impact associated with this provision is slim. 

The other election challenge in this case is also upheld: the rule prohibiting people other than family members or caregivers to mail your ballot or deliver it to the election authorities within 27 days of the election. The majority sees no disparate impact associated with this rule, and the majority in any event think it promotes election integrity by preventing vote-buying and intimidation associated with voting by mail. 

The majority Justices were appointed by Republicans. The three dissenters, all Democratic appointees, dispute all of this. Writing for the dissenters, Justice Kagan states that each election rule is analyzed separately to see if there is a disparate impact, and that puzzle cannot be solved by determining whether other fair election rules are in place. Justice Kagan notes that the "majority's opinion mostly inhabits a law-free zone" in that, as I stated above, the majority cites little case law in its analysis and instead employs statutory analysis. The dissent also finds disparate impacts in the provisions that were challenged in this case. 

Thursday, July 1, 2021

"Temporary" ailments may qualify under the Americans with Disabilities Act

In a ruling that expands liability under the Americans with Disabilities Act, the Court of Appeals has ruled that a prisoner who hurt himself while playing basketball can proceed under the statute even though his injury was a temporary disability. This ruling arises in the context of an inmate's medical treatment, but the reasoning will also probably apply in the employment context.

The case is Hamilton v. Westchester County, issued on June 30. Plaintiff tore his miniscus when he stepped on crumbled concrete in the recreational yard. He claims jail officials ignored the medical advice from the Westchester Medical Center and denied him a knee stabilizer and an immediate MRI, causing him "severe pain." He sues under the ADA, which was amended in 2008 to reverse Supreme Court rulings that had narrowly interpreted the statute in defining who has a "disability" under the statute. The district court dismissed the case, holding that plaintiff's disability was only temporary and therefore not covered under the ADA.

The Court of Appeals (Raggi, Calabresi and Chin) reverses. Under the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. . . . To establish a claim under Title II, a plaintiff must demonstrate '(1) that she is a qualified individual with a disability; (2) that she was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to her disability.'" The question is what constitutes a "disability"?

While the Supreme Court narrowly interpreted "disability" in a series of rulings in the 1990s, Congress amended the statute (we now call it the ADA Amendments Act, or ADAAA), emphasizing that "t]he principal purpose of the ADAAA was to overrule the Supreme Court's arguably narrow interpretation of what constitutes an ADA-qualifying disability set forth in Sutton v. United Air Lines, Inc., and Toyota Motor Mfg., Ky., Inc. v. Williams, and to make clear that the substantial-limitation requirement in the definition of 'disability' is not an exacting one." 

In addition, "[t]he term 'substantially limits' shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA," and "is not meant to be a demanding standard."  28 C.F.R. § 35.108(d)(1)(i).  Relatedly, the term "substantially limits" is to be interpreted and applied to require a lower degree of functional limitation than the standard required prior to the ADAAA.  28 C.F.R. § 35.108(d)(1)(vi)."

After noting plaintiff's physical difficulties arising from the knee injury and in particular his inability to move around the shower and endure strip searches, the Court of Appeals holds in this Rule 12(b)(6) context that 

Hamilton’s claim could not be dismissed as a matter of law simply because the injury causing these limitations was temporary.  In reaching that conclusion, we join the First, Fourth, and Seventh Circuits in holding that under the expanded definition of "disability" under the ADAAA, which now covers  impairments "lasting or expected to last less than six months," 28 C.F.R. § 35.108(d)(ix), a short-term injury can qualify as an actionable disability under the ADA. In other words, a plaintiff's actual disability claim under the ADA does not fail solely because he failed to "state that his [disability] will be permanent or chronic . . . [or] indicate the duration or long-term impact of his impairment such that the Court may infer that his injury was not temporary." 

Monday, June 28, 2021

Loud music and horn-honking

A man's home is his castle. The Constitution does not explicitly say that, but cases have said that. It means the police cannot enter your home without a warrant, or unless there is an emergency that requires immediate entry. We call them "exigent" circumstances." This case explores the exigent circumstances principle.

The case is Lange v. California, a Supreme Court case issued on June 23. While driving his car, Lange was playing the music at concert hall volume and honking his horn. This attracted the attention of a police officer, who activated his overhead lights and followed Lange all the way to his house. This was not really a high-speed chase, as Lange lived nearby. The officer followed Lange into his house and tested him for alcohol, finding that Lange's blood alcohol level was three times the legal limit, which explains the loud music and horn-honking. Question: was this search legal? That depends on whether the officer had the right to enter Lange's home.

The Supreme Court many years ago devised the "exigent circumstances" to warrant rule in recognition that sometimes the police need to act quickly to deal with an imminent emergency, such as the destruction of evidence, or a health risk. But what distinguishes this case from the others is that Lange was involved in a misdemeanor "chase" and not a felony. While some misdemeanor cases are actually more serious than felonies, such as domestic violence cases, most misdemeanors are minor offenses that do not involve violence or serious emergencies. Justice Kagan writes:

Our Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanants’ flight. That approach will in many, if not most, cases allow a warrantless home entry. When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, as described just above, include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency. When the nature of the crime, the nature of the flight, and  surrounding facts present no such exigency, officers must respect the sanctity of the home—which means that they must get a warrant.
So there is no hard-and-fast rule in cases like this. But the Court is saying that misdemeanor cases may not always justify a warrantless entry into someone's home. The case now returns to a California court to apply the principles set forth in this case.

Friday, June 25, 2021

Supreme Court upholds vulgar, off-campus speech

The Supreme Court first recognized the constitutional rights of grade-school students to speak out without punishment in 1969, when it ruled in Tinker v. Des Moines Indep. School District that the speech may only be restricted if it would materially disrupt the educational process. Tinker was also the last time the Supreme Court ruled in favor of students in a free speech case. Until now.

The case is Mahanoy Area School District v. B.L, issued on June 23. In Tinker, the Court said the school could not discipline students who wore anti-Vietnam War armbands in school. But subsequent cases always found in favor of the schools. In 1986, the Court said education authorities could regulate vulgar student speech in school. In 1988, the Court ruled that school principals had broad authority to censor student newspapers. Then, in 2007, the Court said the school could regulate off-campus speech if the student said it the course of a school-sponsored event. The 2007 case was known as the "Bong Hits for Jesus Case." 

In Mahanoy, the plaintiff posted on her personal Snapchat account, "Fuck school fuck softball fuck cheer fuck everything." She did this out of frustration over not making the cheerleading squad. The school disciplined her for this. Over the years, federal courts have not been able to agree on how, if at all, schools can regulate off-campus speech. The Supreme Court resolves that dilemma, at least somewhat.

In an 8-1 ruling (Justice Thomas dissenting), the Court notes that the in loco parentis principle (in which the school stands in place for the parents) is diminished when the speech happens off-campus. Also, "courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.  When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention." And the school has an interest in protecting unpopular expression because American schools are "the nurseries of democracy" and our representative democracy will not work unless we protect "the marketplace of ideas." In sum, Justice Breyer writes:

Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.

Under this new principle, the student wins the case. Her speech was neither "fighting words" nor obscene as defined under Supreme Court precedent. This was "pure speech" that B.L. uttered off-campus, on her own time, without even mentioning the name of her school, and she did so on her cellphone to her private circle of Snapchat friends. The school's interest in regulating this speech is low, not enough to stifle her free speech interests. And the speech did not substantially disrupt the academic process. 



Wednesday, June 23, 2021

Family association claim fails under Rule 12

There are certain rights and entitlements that do not expressly appear in the U.S. Constitution. The right to intimate family association is one of them. The courts have implied that such right exists and can predicate a damages claim -- if that right is actually violated. It was not violated in this case.

The case is Keller v. Schoharie County Dept. of Social Services, a summary order issued on May 20. Keller claims that defendants violated her constitutional right to intimate association with family and her right to privacy by interfering with her relationship with her then-minor daughter, C.K, and revealing her mental health issues to C.K. Keller. A body of case law governs cases like this:

To state a claim for infringement of the right to familial association, a plaintiff must allege conduct “so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.” State action that is “incorrect or ill-advised” is insufficient to give rise to a substantive due process violation; rather, the action must be “conscience-shocking.” A plaintiff must also allege “that state action was specifically intended to interfere with the family relationship.” While “parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.”
So we have a strict burden of proof in this area. Plaintiff cannot survive this legal standard, and her case is dismissed under Rule 12 for failure to state a plausible claim. While she claims the defendants "destroyed her relationship with her daughter by telling her that Keller has serious mental health issues and should be on medication but is not," this "unwise and inappropriate" statement "does not rise to the level of ignoring overwhelming exculpatory information or manufacturing false evidence." What is more, "the estrangement between mother and daughter came after a years-long abusive relationship that resulted in multiple orders of protection against Keller. It is implausible to credit the breakdown in relationship to the comments of Woods and Baldwin where multiple instances of domestic violence by Keller against C.K. resulted in multiple lawful restraining orders and a no-contact order."

Thursday, June 17, 2021

Court upholds summary judgment against age discrimination plaintiff

In this case, the Court of Appeals affirms the grant of summary judgment to management on the plaintiff's age discrimination claim even though she argued that multiple younger candidates were offered positions for which she was more qualified.

The case is Peddy v. L'Oreal, a summary order issued on  May 20. I argued the appeal for Peddy. After her position was eliminated, Peddy reapplied for six or seven other jobs within the company. The positions went to younger candidates, and the evidence showed that many of them did not have the minimal qualifications for the position. The company argued that it used business judgment in making these hiring decisions, and that it had a policy of not rehiring employees into lesser titles that would amount to demotions for the candidate.

The Court of Appeals (Walker, Park and Nardini) held as follows: first, it noted that the Second Circuit stated in Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2d Cir. 2001), that in a failure-to-hire case, the plaintiff must show her credentials were “so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” That holding favors the defendant in this case, the Court states, because "For the positions Peddy highlights, the selected candidates each had experience that roughly matched the job postings. Thus, Peddy’s credentials were not  'so  superior' that they would support an inference of discrimination." This is interesting reasoning. The Court does not note Peddy's argument that the selectees did not have the minimum qualifications or Peddy's experience in the industry. This holding stretches Byrnie quite a bit.

A few words about the "so superior" standard in Byrnie. Title VII does not include this language, which draws from the general rule that management enjoys some discretion in choosing among qualified candidates. Byrnie, in turn, took the lead from two other appellate rulings, Deines v. Tex. Dept. of Protective & Regulatory Services, 164 F.3d 277 (5th Cir. 1999), and Fischbach v. D.C. Dept. of Corrections, 86 F.3d 1180 (D.C. Cir. 1996). These cases stand for the proposition that the plaintiff cannot win unless “no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question” (Deines) and “Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates” (Fischbach). A reading of Dienes shows the Fifth Circuit had been using that language for years. The D.C. Circuit had also previously used this language, and Fischbach cites the general rule that courts cannot serve as super-personnel boards. Should the courts reconsider this judge-made principle that might excuse subconscious or even overt bias when other candidates are also qualified for the position? Surely a jury can find that management discriminated even when choosing among qualified candidates.

Another holding in Peddy is the Court's finding that management had a policy that prohibited re-hiring employees into lesser positions. But the evidence for this "policy" was the deposition testimony of a managerial witness, not a written policy. We argued the jury does not have to credit that policy because it was breached on two occasions with other employees and the jury does not have accept testimony from interested witnesses, as per the Supreme Court's language in Reeves v. Sanderson Plumbing, 530 U.S. 133, 151 (2000): "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'” Plaintiffs' lawyers often cite this language from Reeves, but I have not seen the Court of Appeals invoke it for purposes of rejecting summary judgment in employment discrimination cases.

“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)
“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)
“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)
“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)
“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)

Tuesday, June 15, 2021

For appellate mavens only

Federal appellate practitioners know that not every trial court ruling may be appealed. The Court of Appeals only has jurisdiction to hear cases from final judgments, which means the entire case must be over and done with before you can file a notice of appeal. This is a stark contrast from the New York appellate system, where just about anything can be appealed, even if the case is not over, such as the denial of summary judgment or a discovery ruling. This case would be included in any textbook on appellate practice, as it raises a rare issue that only an appellate maven would love.

The case is Bey v. City of New York, issued on June 9. I wrote about this case at this link. The Court holds that the Americans with Disabilities Act is not violated if the employer denies an accommodation that is prohibited under a binding federal regulation. But the Court also had to deal with another issue: appellate jurisdiction.

What happened here was that the district court ruled in favor of the plaintiffs, granting their motion for summary judgment on ADA liability. The City appealed from that ruling, but plaintiffs argued there was no appellate jurisdiction because the district court still had to rule on their damages claim, which was not part of the summary judgment ruling. If the plaintiffs are right, then there is no appellate jurisdiction and the City cannot take up the appeal until the district court makes a damages determination.

But the plaintiffs are not correct here. The Court of Appeals (Raggi, Sullivan and Bianco) notes that on issues like this, "we eschew formalism in favor of a pragmatic approach," and "we . . . look to whether, following the district court's decision, further proceedings are contemplated or required." We have appellate jurisdiction because the district court styled its decision as "Memorandum, Order, Judgment, and stay." The word "judgment" in that equation suggests the district court was issuing a judgment. While plaintiffs argue that they also sought damages in this case for the reasonable accommodation denial, the Court of Appeals draws the inference that the district court had intended to deny them any damages even though it ruled in their favor on the merits, as the district court noted during the pre-motion conference that damages were minimal and possibly frivolous in this case. "While the district court's decision stayed mum on the issue of damages, the court's silence is most naturally understood as a denial." 

Monday, June 14, 2021

ADA not violated if federal regulation prohibits "reasonable" accommodation

The Court of Appeals has held that the reasonable accommodation provision of the Americans with Disabilities Act does not require an employer to modify its workplace policies in a manner that violates federal regulations. 

The case is Bey v. City of New York, issued on June 9. The plaintiffs are four Black firefighters who suffer from a skin condition known as Pseudofolliculitis Barbae, or PFB, which results in persistent irritation following shaving. This condition affects 45% to 85% of Black men. People with PFB deal with this condition by not shaving or keeping a light beard.

The problem was that firefighters have to wear a respirator that must seal against the firefighter's face to keep out toxic fumes. In August 2015, the FDNY offered medical accommodations with firefighters with PFB by allowing them to maintain closely cropped beards, uncut by a razor. But the federal regulations changed, and in May 2018, the FDNY determined that the new OSHA regulations prohibited the accommodation altogether, and the accommodations were revoked for the people who had previously received them. The firefighters now have to be clean-shaven, notwithstanding their PFB. Plaintiffs argue that the FDNY violated the ADA in revoking the accommodation.

The Court of Appeals finds that the FDNY did not violate the ADA because (1) the OSHA regulation prohibits any facial hair, whatever its length, and that they must be clean-shaven where a respirator seals against the skin, and (2) "[a]n accommodation is not reasonable within the meaning of the ADA if it is specifically prohibited by a binding safety regulation promulgated by a federal agency." In sum, "an employer cannot be held liable for failing to offer an accommodation that is expressly prohibited by binding federal law."

 The authority for this holding is the Code of Federal Regulations, which states that there is no ADA violation if "another federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required" under the regulations. The Third Circuit has also issued a similar holding. The Second Circuit (Sullivan, Bianco and Raggi) also says the reasoning in Albertson's Inc. v. Kirkingburg, 527 U.S. 555 (1999), mandates this result.

Thursday, June 10, 2021

Tricky arbitration agreement is found to be invalid

There are two justice systems in America: the public justice system, with courts, judges, the Supreme Court, the federal and state rules of procedure, and the rules of evidence. Then there is the private justice system, also known as arbitration, in which the parties choose the arbitrator, the rules of evidence and prior precedent don't always apply, appellate options are limited, and the proceeding may operate in secret. In many employment disputes, the employer pays the arbitrator's bill. Many people, upon starting a new job or signing up for a service, "agree" to arbitration by signing a sheet of paper they never read, or by clicking through an internet link with fine print that says that any dispute arising from the relationship (whether an employment relationship or consumer transaction) must be arbitrated and cannot be taken to court. This case asks when the arbitration "agreement" in a consumer transaction can be invalidated.

The case is Soliman v. Subway Franchisee Advertising Fund, issued on June 8. Plaintiff went to a Subway sandwich shop and signed up for a promotion that would give her a free sandwich. All you have to do is send a text message to Subway. Of course, plaintiff signed up for this. Then she opted out of the promotion later on, but the promotional text messages from Subway continued unabated. She sues under the Telephone Consumer Protection Act over the unwanted text messages. The problem is that Subway argues that she has to take the case to arbitration, not court. Arbitration is regarded as a lesser forum for plaintiffs then court, so she challenges Subway's arbitration demand.

Courts normally assume that most arbitration agreements are valid, even if the plaintiff never read them prior to signing them, or if they contain legalese. Most people are not in a position to negotiate the arbitration provision, particularly new hires who want the job and don't have the gumption to take issue with arbitration; they have no bargaining power, and what new employee argues with management about where they might take any future employment dispute?

This case is different. The plaintiff prevails on appeal, as the Second Circuit (Jacobs, Pooler and Bianco) finds the arbitration agreement agrees with the district court in holding the arbitration provision cannot force plaintiff to arbitration because it was too obscure (and frankly, tricky) to place her on notice that any dispute she would have with Subway would have to proceed to arbitration. Here is what the Court of Appeals says about all of this:

Subway has failed to demonstrate that such terms and conditions would be clear and conspicuous to a reasonable person in Soliman’s position for the following reasons:  (1)   Subway failed  to provide   evidence   regarding   the   size   of   the advertisement  at  issue,  or  the  print  size  contained  within  that  advertisement; 2) the reference to “[t]erms and conditions” was buried on the advertisement in a paragraph that was printed in significantly smaller font relative to the other text on  the  advertisement, and  the  reference  itself  was  surrounded  by a  substantial amount of unrelated information; (3) the advertisement only vaguely referenced “[t]erms and conditions,” and did not state that a consumer would be agreeing to those terms if she sent a text message to Subway’s short code, nor did it otherwise direct the consumer to such terms; (4) access to the terms and conditions on the Subway website required Soliman to type in the URL text provided on the hard- copy print advertisement into an internet browser on her cell phone or some other device  with  internet  browsing  capabilities;  and  (5)  once  linked  to  the  Subway website, the heading stated that it contained “terms of use for this website,” thus potentially  suggesting  to  a  reasonable  person (searching  for  conditions of the promotional offer) that the website did not contain any terms or conditions beyond those relevant to the use of the website.  This combination of barriers leads us to conclude that   the   terms and conditions in this case were   not   reasonably conspicuous under the totality of the circumstances and, thus, a reasonable person would not realize she was being bound to such terms and conditions by texting Subway in order to begin receiving promotional offers.

At oral argument in this appeal, the Second Circuit jumped all over Subway's lawyer from the outset, noting that this was a different kind of arbitration case and suggesting the terms of the arbitration provision were too obscure to place anyone on notice that any disputes would have to be arbitrated. Subway's lawyer argued in part that a reasonable consumer would expect that a free sandwich will come with certain conditions. The panel was not buying it, though it did say that no precedents really address a case like this.

Friday, June 4, 2021

Court of Appeals upholds plaintiff's verdict in Title VII claim

This case teaches us a few things. First, if something goes wrong at trial, object as early as possible. Second, the trial court has wide latitude to reconcile any potential conflicts in the verdict form. The losing party in this case did not object when the jury returned the verdict sheet, and the trial court nonetheless found a way to harmonize the jury's answers. The plaintiff wins the appeal.

The case is Perez v. County of Rensselaer, a summary order issued on May 27. I represented the plaintiff on appeal. This is a gender discrimination case. The plaintiff, a man, alleged he was denied multiple promotions in the County Probation office because of his sex; most of the positions went to female candidates. (The original plaintiff was Gerald Wierzbicki. He passed away, so his wife, Nellie Perez, became the plaintiff). The jury entered a verdict in his favor, awarding plaintiff $30,000 in lost wages and $100,000 in pain and suffering. The jury registered its verdict on a verdict form. Post-trial, after the jury had gone home, defendants argued in a motion that the jury's answers on the verdict form actually meant that defendants had won the case.

Here is how the Court of Appeals characterizes the verdict form:

The verdict form asked the jurors two questions regarding [Plaintiff's] Title VII gender
discrimination claim. First, the form asked: “Did Nellie Perez prove by a preponderance of the evidence that  [Plaintiff's]  gender  was  a  motivating  factor  in  one  or  more  of  Defendant  the  County  of Rensselaer’s  decisions  not  to  promote  him  to  the  Senior  Probation  Officer  position  or  the  Probation Supervisor  position?” 

If  the jurors  answered  “yes,” they  were  instructed  to  proceed  to Question 2, which asked: “Did the County of Rensselaer nevertheless prove by a preponderance of the evidence that even if [Plaintiff's] gender was a motivating factor in any of its decisions not to promote him, that it nevertheless would have made the same decision even absent gender discrimination?” Despite answering “yes” to Questions 1 and 2, the jury proceeded to award compensatory damages one amount of $130,000. Defendants allege that the award of damages was inconsistent with the jury’s affirmative response to Question 2.

As defendants saw it, since Title VII allows the defendant to win the case if it shows it would have denied the plaintiff the position even without considering his gender, they have to win the case because the jury also said the County would have made the same decision anyway. The basis for this argument is the first part of Question 2: "even if [Plaintiff's] gender was a motivating factor in any of its decisions not to promote him . . . " (Emphasis supplied).

The trial court disagreed. Not only did defendants fail to object to the purportedly inconsistent answers before the jury was discharged, but the trial court said that the jury meant that the County would have denied plaintiff at least one of the positions even without considering his gender. Supporting the trial court's finding was that, in one instance, a man was awarded the promotion instead of plaintiff.

Thursday, June 3, 2021

Free speech lawsuit over Facebook ban is mooted

This is a case for the modern age: someone sues a politician who banned him from his Facebook page. The case loses in the Court of Appeals because the elected official later decided to reopen the Facebook page to this guy with a promise not to ban him again.

The case is Wagschal v. Skoufis, a summary order issued on April 22. Skoufis is a state senator from Orange County; his office was right across the street from mine in Chester, N.Y., before we relocated to New Paltz. Social-media-banning is the latest craze, most prominently when former president Trump cut people off from his Twitter page and the Second Circuit in Knight First Amendment Inst. v. Trump, 928 F.3d 226 (2d Cir. 2019), held that maneuver was a free speech violation. In this case, plaintiff was kicked off Skoufis's page after he said Skoufis was condoning "flagrant racism" and "ugly comments" from members of the public on his Facebook page relating to Kiryas Joel, a Hasidic community in Orange County. 

Unfortunately for plaintiff, Skoufis decided to allow him to comment on Facebook again. The Court of Appeals (Calabresi, Carney and Nardini) says this moots the suit. When is a suit moot? Can a defendant just make the case go away by reversing the practice that got him sued in the first place? In certain cases, yes, if we are certain the defendant will not revert to his old ways. Skoufis said in two sworn declarations that plaintiff would no longer be banned from his Facebook page again. Promises like this will moot the case, as per Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009).

After the Second Circuit issued the Trump ruling, Skoufis acknowledged that banning the plaintiff from his Facebook page again would likely violate the First Amendment. Courts will defer to public officials on their promises not to reinstate an unlawful policy in cases like this. That means plaintiff's case is gone. 

What about damages? A moot case does not extinguish your entitlement to damages. The problem for plaintiff is qualified immunity. If the law was not clearly-established at the time of the constitutional violation, there are no damages against the individual defendant. First Amendment cases arising from social media banning are still in their infancy. It was not clear that Skoufis was breaking the law when he banned plaintiff from his Facebook page. Qualified immunity therefore kicks in, plaintiff cannot recover any damages. 

Tuesday, June 1, 2021

Rehearing granted in abortion-access injunction case

In March 2021, the Court of Appeals said the State was denied a fair trial in a dispute over whether anti-abortion activists had unlawfully impeded women from an abortion clinic. As I wrote in covering the case, 

The Court of Appeals ultimately holds the AG was entitled to a preliminary injunction after all, and that she had proven a likelihood of success on whether the protesters had physically obstructed patients, threatened the use of force against them, and violated the rules against follow-and-harass. The Court also finds that, without the injunction, the clinic patients will suffer irreparable harm and that without the injunction, there will be future violations of the FACE Act. The Court also holds the FACT Act does not violate the First Amendment right to speech and protest, as it prohibits true threats, which fall outside the First Amendment's protections.

The case is State of New York v. Griepp. The ruling in March was a huge victory for the New York Attorney General, which is prosecuting the case.That appellate ruling has now been vacated. In April, the protesters filed a petition for rehearing. The Court of Appeals has granted that petition without any hint as to how it might rule on it. The district court ruling in the protesters' favor remains in place while the Court of Appeals re-hears the case.  

Friday, May 28, 2021

Court denies new trial in racial harassment case

This racial harassment went to trial a few years ago. Plaintiff alleged that a coworker had called her a series of racial names in the classroom where they were training to become Transit Authority employees. Things came to a head on February 21, 2016, a few months after the harassment started, when plaintiff's antagonist threatened her and hurled more abusive attacks against plaintiff, though this time there was nothing explicitly racial about this second round of attacks. The trial court told the jury to ignore the second round, and the plaintiff lost at trial. She appealed, claiming the second round was relevant and she could have prevailed at trial had the jury been able to consider it.

The case is Watkins v. New York City Transit Authority, a summary order issued on May 25. I represented plaintiff on appeal. The Court of Appeals sustains the judgment against plaintiff. We argued that while the second round of attacks was not explicitly racial, since it involved the same person who had racially insulted plaintiff a few months earlier, the jury could deem the second round to be racially-motivated, as well. Case law supports that argument. See e.g. Pucino v. Verizon Comms., 618 F.3d 112 (2d Cir. 2010). The Court of Appeals (Chin, Leval and Wesley) does not address that issue, instead ruling against plaintiff on different grounds: that the harassment cannot be imputed to the Transit Authority. 

While plaintiff argued that the harassment took place in a classroom with the instructors present, thereby putting them on notice of the hostile work environment, the Court writes:

Her only evidence offered in support of the Transit Authority's knowledge prior to February 21 was the presence of instructors in the classroom near her when she heard Jenkins's insults.  That was insufficient to support the inference that the instructors were aware, or should have been aware, that a severe or pervasive pattern of race-based harassment was occurring.

The harassment took place in a classroom in which there were about 11 trainees and several instructors.  Watkins gave no information about what the general noise conditions were at the moments when Jenkins's taunts were spoken, such as whether they occurred during classroom instruction when the room was otherwise quiet or during breaks when numerous conversations might have been going on at the same time among the approximately 15 trainees and instructors. Nor did she furnish information as to whether the instructors were engaged in other conversations at those moments. The mere fact that instructors were within earshot of what Watkins heard Jenkins say is insufficient by itself to support the inference that they actually heard or paid attention to Jenkins's words, much less that they understood those insinuations as constituting one student's race-baiting of another. None of the seven witnesses who had been present in the classroom, who could have corroborated Jenkins's racial harassment, including two classmates called by Watkins, testified to having heard Jenkins's race-based slurs. It is undisputed, furthermore, that Watkins did not inform supervisors of Jenkins's race baiting prior to the February 21 altercation.

Was the Court of Appeals over-analyzing the evidence here? Since the jury was not given a particularized special verdict form that asked if management knew about the harassment, plaintiff argued there was not way of knowing that the jury had rejected her claim that the instructors had heard the racial name-calling. So, while many witnesses said they did not hear the insults, the argument goes, the jury could have credited plaintiff's testimony that the insults took place in the instructors' presence and that they therefore heard all of it. Plus, if the insults are taking place in the classroom, it is a fair inference that the instructors heard it. The Court of Appeals disagrees: "Accordingly, even if the February 21 evidence was relevant to the question whether Jenkins subjected Watkins to a pattern of race-based hostility, its exclusion was harmless."

Monday, May 24, 2021

Plaintiff alleges employment discrimination under Littlejohn test

The plaintiff wins this appeal in a decision that can only be characterized as short and sweet. The Court of Appeals says the plaintiff has sufficiently alleged employment discrimination.

The case is Sapio v. Selux Corporation, a summary order issued on April 22. Pleading standards for these claims have been relaxed in the Second Circuit, ever since the Court issued Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2014). Every plaintiff's lawyer who deals with a motion to dismiss under Rule 12 must review Littlejohn. Every defendant's lawyer seeking to dismiss the case under Rule 12 must find a way around Littlejohn. Every district court that wants to dismiss a discrimination lawsuit must learn to live with Littlejohn.

The district court said the complaint failed because plaintiff only alleged that he was fired because is Asian and defendant wanted to replace her with a white employee. As the district court saw it, that was not enough to assert a plausible discrimination claim. But what the Court said in Littlejohn was that an employment discrimination plaintiff "will ordinarily satisfy her 'minimal' burden to allege facts supporting an inference of discrimination by alleging her replacement by someone outside her protected class." Plaintiff did that here, and the case heads back to the Northern District of New York.