Trial courts cannot grant summary judgment sua sponte

This is a very unusual case where the district court granted summary judgment without notice to either party on the eve of trial, prompting an appeal to the Second Circuit, which reinstates the case because things like this just don't happen in federal court.

The case is Kowalchuck v. Metropolitan Transit Authority, issued on February 27. This case is brought under the Federal Employers' Liability Act (FELA), where the plaintiff claims he suffered injuries clearing snow at an MTA property. Note that personal injury cases like this are usually not available under state law, which provides workers' compensation instead. But that is not the issue here.

What happened here was that defendant wanted to move for summary judgment, and they told the trial court as such at a pre-motion conference. Many judges hold these conferences to gain a sense of whether the motion is worth filing. In this case, the trial court deemed the pre-motion request as the motion itself and then denied the motion after reading the parties' letter briefs on the issue. Now everyone has to prepare for trial. But two years, later only four days prior to trial, the district court sua sponte granted summary judgment to defendant, dismissing the case.

So we have a summary judgment order that issued without briefing, much less oral argument. Can the trial court do this? No, says the Court of Appeals.

Only a few days prior to trial, the district court was reviewing the file and determined that undisputed facts and recent appellate law made it clear that plaintiff could not win the case. While the Court said it was taking this action at the eleventh hour, it wrote that it was doing everyone a favor because a short bench trial would otherwise be too costly, and plaintiff was traveling from North Carolina for trial and would face enhanced COVID risks. 

The Court of Appeals (Chin, Walker and Robinson) reemphasizes that trial courts cannot sua sponte grant summary judgment without giving the parties a chance to make their case in writing through the formal motion process. Rule 56 outlines that procedure. Sua sponte summary judgment orders procedurally prejudice the parties, especially the party that loses the case without a chance to make their case. Back the case goes to the Eastern District of New York to resolve the motion properly.

What happens when a criminal defense lawyer does not file an appeal for his client?

This is one of the rare habeas corpus petitions that actually prevails on appeal. The plaintiff was a criminal defendant who was found guilty of 22 counts, including mail fraud and murder-for-hire in the Northern District of New York. He was represented by a public defender and wants to appeal. But that appeal never happened. Hence the habeas petition. 

The case is Thomas v. United States, issued on February 21. Following Thomas's conviction and sentence (for 24 years of imprisonment), he asked his lawyer to file a notice of appeal. Since no appeal was filed, Thomas filed a habeas action alleging ineffective assistance of counsel. In that petition, Thomas submitted his sworn statement that he instructed his lawyer to file an appeal. But the district court denied that petition, holding that 

[I]t is unclear when and how he made such request, whether there were any discussions about the request, whether he followed up with counsel, whether he was aware of the deadlines to appeal, or if [he] agreed to forgo the appeal.

In other words, the district court held, Thomas's petition raised only "vague, conclusory, or palpably incredible" allegations. The Second Circuit (Jacobs, Sack and Nardini) reverses.

Thomas wins the appeal because the district court abused its discretion in declining to hold a hearing on Thomas's claim that he told his lawyer to file an appeal. As the Court of Appeals notes, "The right
to appeal has long been recognized as sacrosanct, particularly in cases involving the loss of a chance at an entire appellate proceeding,” and "[a] lawyer who 'disregards specific instructions' to file an appeal provides ineffective assistance. This is true even if the lawyer believes the appeal to be frivolous," in which case the lawyer has to file a brief explaining why a full appeal has no chance for success.

Since Thomas "swears" he told his lawyer to file an appeal, and that his lawyer failed to do so, case law holds that a hearing on this issue is required under these circumstances. "Thomas’s failure to specify 'when and how he made such request,' is therefore no basis for denying the petition without fact-finding. That uncertainty is the very reason for a fact inquiry: so that the district court may determine 'whether the client requested the appeal,' notwithstanding the allegation."

What it means for Thomas is that the case returns to the Northern District of New York for a hearing on whether Thomas really did tell his lawyer to file an appeal. If the trial court rules in favor of Thomas on this issue, the question will then become whether this appeal had any chance for success; that issue will complete the ineffective assistance inquiry. Ultimately, to get what he really wants, Thomas needs to prove that the appeal would have been successful and that his conviction and/or sentence would have been modified or vacated entirely.

Firefighters' COVID-19 vaccine due process claim fails

This due process case brought by numerous New York City firefighters challenging a vaccine mandate demonstrates how complex due process cases really are, and how hard they are to win even when a municipality violates state law. 

The case is Garland v. New York City Fire Department, a summary order issued on February 6. Many COVID-19 vaccine cases have been litigated in the federal courts in New York, and they eventually reach the Court of Appeals, which has to apply traditional due process rules to this new problem. But that's what precedent is for, correct? To apply old rules to new problems. Plaintiffs claim the City suspended and even fired firefighters who did not comply with the mandate, but that the City did not follow the rules requiring it to negotiate employment conditions with the unions. New York collective bargaining rules require such negotiation.

The Court of Appeals agrees that plaintiffs advance a plausible claim that the City's process in imposing the vaccine mandate violated state and municipal law. But that does not mean plaintiffs have a due process claim. Due process requires the government to impose a fair process in the deprivation of a liberty or property right. Reams, and I mean reams, of case law have developed this principle to such a degree that only experienced constitutional lawyers can understand it. 

The violation of state law does not per se create a due process violation, the Court of Appeals (Menashi, Merriam and Vaden (from the Court of International Trade)) notes, and the plaintiffs can only win if they were denied notice and an opportunity to be heard prior to the deprivation and that a full adversarial hearing is provided for afterwards. These rules make it difficult to win a due process case, because such process is often in place. 

In this case, while the plaintiffs got constitutionally-adequate notice of the property deprivation (your job is property in the civil service context), the issue is whether plaintiffs got an adequate opportunity to be heard on their religious or medical exemptions because the City did make provisions for an internal appeal, and the plaintiffs could also file an Article 78 petition on state court post-deprivation. While Article 78 petitions are not as exciting as a full-blown federal lawsuit, such petitions can be won, and they actually proceed faster than most federal cases. While plaintiffs claim the internal appeals process is a sham because only 100 such appeals (out of 3,200) were successful, they have not pled a plausible claim that this process was a sham, such as whether the accommodation requests were frivolous or meritorious. That particularized pleading requirement is another hurdle to successful litigation in federal court, but that's a story for another day.

Exposure to drug smoke at County jail gives rise to Fourteenth Amendment case

The inmate at the Orange County jail in upstate New York sued his jailers, claiming he was exposed to second-hand smoke from K2, a synthetic canninoid at the jail. The district court dismissed the case, claiming plaintiff did not assert a claim that the jailers were deliberately indifferent to a substantial health risk. Plaintiff wins the appeal as the Court of Appeals reinstates the case.

The case is Michel v. Orange County, a summary order issued on February 7. Plaintiff claims the secondhand smoke gives rise to a deliberate indifference case under the Fourteenth Amendment, which requires jailers to avoid exposing inmates to serious health risks. The Court of Appeals says plaintiff has pled a plausible case because he asserts the prison environment was permeated with K2 drug smoke resulting from the under-enforcement of jailhouse rules and overcrowding, as well as lousy ventilation. Plaintiff complained internally about this through a grievance, as required under the Prison Litigation Reform Act (PLRA).

The Court of Appeals (Leval, Parker and Merriam) holds that plaintiff's complaint sufficiently asserts a claim under the Fourteenth Amendment, either under a failure-to-train theory or an unconstitutional practice theory, both cognizable under Section 1983. I can tell you from experience that these are difficult theories of liability, as such Monell claims are frequently dismissed because the plaintiffs simply cannot meet the high bar set by the courts to hold counties and cities liable. (When that happens, the plaintiffs have to sue individual officers instead). But here, the allegations in the complaint support a claim against the County and not just individual officers, as plaintiff asserts the K2 drug smoke was so widespread that municipal policymakers were aware of the problem but did nothing to remedy it. Plaintiff also asserts claims against individual correction officers, who were allegedly aware of the problem but did not protect plaintiff's civil rights to be free from exposure to harmful smoke. 

The Court of Appeals thinks this case may be strong enough to have the court appoint plaintiff a lawyer to handle the case in the trial court. The Court of Appeals does not make appointments like this very often, as there is of course much skepticism about inmate cases, many of which are thrown out of court from the outset. But a pro bono attorney handled the appeal, so that suggests the Second Circuit thought at the outset that this case had some promise. But this victory is an early one for plaintiff, as he still must take depositions and prove his case in discovery. Once discovery is over, the County will probably move again to dismiss the case, this time on a motion for summary judgment.

Excessive force claim, occasioned by eating French fries, will go to trial

The plaintiff claims that three police officers in Derby, Connecticut used excessive force while effectuating her arrest. The officers tried to dismiss the case on qualified immunity grounds, but that motion failed, so they appealed to the Second Circuit. The Court of Appeals says qualified immunity cannot attach at this early stage of the case.

The case is Mehaylo v. Loris, a summary order issued on February 14. If you handle Section 1983 excessive forces cases, then a case like this is familiar to you. I take these facts from the district court ruling. Bear in mind this all started because plaintiff got into a car accident because she reached for a French fry while driving and got distracted. 

On February 15, 2017, after 7:30 p.m., Ms. Mehaylo was driving approximately 20 miles per hour when she collided with Naseen Senan at a stop light. Ms. Mehaylo stated that she had taken her eyes off the road for a moment while she reached for a French fry and failed to stop in time. . . . When Ms. Mehaylo returned home, she did not turn on any lights because she noticed flashing lights on her street that she believed were coming from two ambulances parked outside of her neighbor's house, as well as several police cars. At approximately 7:55 p.m., Officers Loris, Dominguez, and Chapman, of the Shelton Police Department, arrived at Ms. Mehaylo's residence in Shelton to locate Ms. Mehaylo and her car for charges related to leaving the scene of an accident. . . . Ms. Mehaylo stated that once she knew it was the police that she knew she had to open the door. She asked the officers outside her front door why they were at her house and answered questions about her involvement in the earlier car accident through the closed wood front door, which required her to raise her voice. Ms. Mehaylo agreed to open the wood front door as long as she could speak to the officers with the screen storm door between them. 

Once Ms. Mehaylo opened the front wood door, Officer DeAngelo opened the screen storm door, reached into Ms. Mehaylo's home, and grabbed Ms. Mehaylo's right arm to pull her out of her home and onto the front porch. As she was initially grabbed, Ms. Mehaylo pulled back. Once on the porch, Officer DeAngelo pushed Ms. Mehaylo against the wall to secure her with her arms behind her back. Officer Loris then grabbed Ms. Mehaylo's left arm, and Officer Dominguez came to assist by holding Ms. Mehaylo's left arm while Officer Loris handcuffed her. The three officers picked Ms. Mehaylo up and brought her from the front porch to a police car parked on the street. 

While Officer Loris attempted to grab Ms. Mehaylo's legs so they could pick her up, she kicked backwards, and her foot made contact with Officer Loris’ groin.  At some point during the arrest, Ms. Mehaylo urinated on Officer Dominguez. Once the officers reached the police car, still carrying Ms. Mehaylo, they threw her into the back of the car on her stomach with her hands handcuffed behind her back and her head hit the center console.

It must have been a hell of a French fry. Moral of the story: do not eat while driving. At least plaintiff was honest about why she was distracted. Most people would probably say something else, like they took their eyes off the road for some reason. Anyway, excessive force claims are difficult to dismiss on motions for summary judgment because the trial court cannot always be sure the jury will find the force was not excessive. These factual disputes are difficult to resolve on the papers. But officers can also seek dismissal based on qualified immunity if the trial court finds the jury would have to find the officers acted reasonably under the circumstances. But even that such motion is difficult to win because we have to assume for purposes of the immunity motion that the plaintiff's version of events is true.

The trial court denied qualified immunity and the officers appeal, invoking one of the few exceptions to the rule that you cannot appeal federal orders until the case is completely over. But the officers lose the appeal because the Court of Appeals (Parker, Lohier an Park) finds the jury could still find that, even after she agreed to cooperate, the officers grabbed plaintiff from the house with too much force in violation of the Fourth Amendment. Unless it settles, the case will proceed to trial.

Developers lose Fair Housing Act case against Orange County community

A housing developer wanted to build a 181-unit project in Orange County, New York, but the Village of Monroe denied its applications for a building permit, prompting the developers to sue for housing discrimination, claiming the denials were motivated by animus against a Hasidic Jewish community, to which the developer intended to market the development. The developers lose the case, not because the Village did not demonstrate anti-Jewish animus, but on more mundane procedural grounds.

The case is BMG Monroe LLC v. Village of Monroe, issued on February 16, more than one year after the Second Circuit heard oral argument. Cases like this are not uncommon in the Hudson Valley. About 10 years ago, someone wanted to build a large community in Sullivan County but met up against community opposition, leading the developers to also claim anti-Semitic discrimination. That case went kaplotz, as the civil rights laws pose a variety of hurdles to successful cases like this.

In today's hurdle, the issue is ripeness. You cannot sue in federal court over land-use discrimination without exhausting all remedies available to you at the local level. When that process is done, the case is ripe for federal court. That process only prolongs this case, which began in 2001, when plaintiffs first proposed the residential development plan, called the Smith Farm Project. But the local planners rejected the application, finding it did not comply with zoning rules. So the developers sued in federal court under the Fair Housing Act, which prohibits religious discrimination, among other things.

Under the case law, before a case like this can proceed in federal court, you have to go through the local planning process. Once you get a final decision from the Zoning Board of Appeals, you can then file in federal court. That exhaustion requirement is excused if the process will prove futile, or a waste of time, because the decsionmakers have already indicated they will reject the project. But proving futility is quite difficult. 

Plaintiffs did not bother with the Zoning Board of Appeals because, they said, such application would have been futile based on the Village Planning Board's having "made clear" it would "refuse to consider any amendment to its conditions on the Smith Project approvals." The Court of Appeals (Sullivan, Parker and Lee) disagrees, holding the record actually shows the Village Planning Board workshop minutes "demonstrate that its members were actually considering BMG's request for a variance, albeit with some initial skepticism." That skepticism does now show the planners were digging its heals and making it clear that it would deny all variances. Expressions of doubt are not the same as putting the kibosh on the project before the application is even filed. 

New York Court of Appeals adds teeth to state anti-retaliation law

The New York Court of Appeals has held that a housing complex that threatened litigation against a "tester" organization that accused it of housing discrimination can be liable under the state law that prohibits retaliation for asserting discrimination claims.

The case is Clifton Park Apartments v. New York State Division of Human Rights, issued on February 15. The tester organization is City Vision, which called Pine Ridge II Apartments, owned by Clifton Park Apartments, purportedly seeking to rent an apartment. The purpose of this inquiry was to see if the apartments were practicing discrimination. City Vision then filed a complaint with the Division of Human Rights (DHR), asserting that the apartments had discriminated against Leigh Renner, a City Vision employee, by directing her to a different apartment when it learned that Renner had children. That would violate the prohibition against marital status discrimination under state law. 

After the DHR dismissed the complaint and held there was no probable cause, the apartments sent City Vision and Renner a letter stating it was "looking to" City Vision and Renner "personally for the damages that" the apartments "sustained as a result of this wrongful conduct." The letter also said the apartments regarded the discrimination allegations as "false, fraudulent and libelous." City Vision next brought a retaliation charge against the apartments over this letter, and DHR ruled in City Vision's favor following a hearing. The letter threatening litigation was retaliatory, the DHR held. City Vision won their retaliation case, and DHR awarded $4,775.00 in damages for its diversion of resources to find counsel in the wake of the litigation threat. DHR also imposed a civil fine in the amount of $2,500.00.

While the Third Department vacated the DHR's finding on the basis that "the mere sending of the letter letter" was not retaliatory under state law, the Court of Appeals unanimously reverses. Under the federal standard guiding retaliation claims, an employer or apartment complex engaged in unlawful retaliation if its response to a discrimination allegation would dissuade a reasonable employee from making or supporting a charge of discrimination. That's the Burlington Northern test from 2006. The reason for this test is that those who accuse others of discrimination in good faith will not do so if the defendant takes action that will prevent others from doing so in the future. 

Under this test, there is enough evidence in the record to support the DHR's finding, the Court of Appeals holds, as (1) the letter reasonably suggested the apartments were threatening litigation against City Vision and Renner, and (2) the letter "shocked" its recipients and forced City Vision to spend resources to find counsel to address the threat. This would dissuade a reasonable entity such as City Vision from asserting discrimination claims in the future, because let's face it, who wants to be threatened with soul-killing and expensive litigation? 

LGBTQ-rights organization lacks standing to challenge hostile Trump-era regulation

Not just anyone can sue the government over its policies. You need standing to sue the government, which means the plaintiff needs to have a concrete interest in the case and not a general interest in striking down the policy. This case, involving an organization that supports LGBTQ-identifying people, is dismissed because the plaintiff lacks standing to challenge the federal government's policy that would allow federal grant recipients to discriminate against people on the basis of sexual orientation or gender identity. 

The case is Family Equality v. Becerra, a summary order issued on February 14. In 2019, the Trump administration announced that it would no longer enforce a rule prohibiting HHS grant recipients from discriminating on the basis of sexual orientation or gender identity. 

This case is brought by several advocacy organizations who provide education and training to partner organizations that serve the LGBTQ community. They also lobby the government to promote anti-discrimination policies. Here is how plaintiffs describe their interest in bringing this lawsuit:

On appeal, Appellants argue that they have organizational standing because the 2019 Notice “perceptibly impaired” their organizational activities. Specifically, Appellants contend that the 2019 Notice made their education and advocacy activities more costly because they were no longer able to rely on HHS’s regulation prohibiting grant recipients from discriminating against LGBTQ people. Instead, they had to devote staff time to identifying for HHS grant recipients alternative antidiscrimination protections, encouraging grant recipients themselves not to discriminate, educating partner organizations about the effects of the 2019 Notice, and lobbying state governments to fill the gap left by the 2019 Notice. The significant time that staff spent responding to the 2019 Notice, Appellants claim, diverted resources away from their other organizational activities.

This does not confer standing to sue. The Court of Appeals (Parker, Lynch and Lohier) notes that "To allege injury-in-fact under their theory of organizational standing, Appellants must show that the 2019 Notice imposed 'an involuntary material burden on [their] established core activities,' that impeded their 'ability to carry out [their] responsibilities' or forced them to divert money from [their] other current activities to advance [their] established organizational interests.” 

The Court holds that "It is not enough for Appellants to claim that the 2019 Notice burdened their education, outreach, and lobbying efforts because they had to spend time assessing its impact and identifying other antidiscrimination protections that would permit them to continue advocating on behalf of the LGBTQ community." The Court adds that plaintiffs "would have spent time assessing the effects of a policy change no matter the content of the 2019 Notice." Therefore, "In the absence of 'any restrictions on [their] ability to perform the[ir] core activities,' Appellants cannot establish that they have suffered an injury sufficient to create standing."

2d Circuit tears apart district court in reinstating disability discrimination case

This disability discrimination case took the Court of Appeals almost two years to decide, and it totals 100 pages. The Court finds that a jury may find that the plaintiff, a medical doctor, was fired because of her disability. The decision emphasizes that trial courts must be careful in resolving disputed facts on a motion for summary judgment. The Second Circuit finds one strand of the district court's reasoning "puzzling."

The case is Porter v. Dartmouth-Hitchcock Medical Center, issued on February 6. Plaintiff began working at the medical center in the Reproductive Endocrinology and Infertility Division (REI) in 1996. In November 2015, she developed neurological problems and took a leave of absence, returning to work on a part-time basis, taking another medical leave of absence in August 2016, which lasted until November. By April 2017, plaintiff was again performing the full range of her prior skills and was working additional hours. But in Spring 2017, defendants decided to close the DEI unit. But they also decided to keep one medical provider on board for OB/GYN duties, and they were considering keeping plaintiff in the unit to handle ultrasound in the gynecology department. But she was denied the position.

One of the decisionmakers on plaintiff's discharge was Dr. Merrens. At a meeting, he was asked why plaintiff was not being retained by the medical center. Dr. Merrens said that "Misty," the nickname for plaintiff,  was "on disability." When someone mentioned that plaintiff "was coming back," Dr. Merrens changed the subject. On this topic, Dr. Merrens then said in an email that plaintiff "currently works at 20% of her time currently[.]" Another decisionmaker, Dr. DeMars, wrote in an email that people who wanted plaintiff to continue working at the medical center were "remembering Misty as a full time employee wearing 3 hats, and not the one who has been out for almost 18 months." While defendant knew plaintiff was interested in staying on at the medical center, Dr. Merrens did not discuss this with her.

Reversing summary judgment on the disability discrimination claim, the Court of Appeals (Kearse, Walker and Livingston) notes that Dr. Merrens' comments about why plaintiff was not being retained were direct evidence of disability discrimination, even if, as the district court held, these admissions were "not conclusive" evidence of discriminatory intent. The actual standard is not whether the admissions were conclusive but whether they might support a verdict in plaintiff's favor; they do. Nor was plaintiff required to present "a pattern of discriminatory comments" by decisionmakers. Such evidence would certainly strengthen plaintiff's case, the Court of Appeals holds. The Court writes, "When the decisionmaker was asked 'why' an employee was not being retained, his answer that she was 'on disability' virtually precludes a ruling as a matter of law that disability has played no role." In addition, the Court writes, "in rejecting Dr. Merrens's 'on disability' statement on the ground that it was not 'more explicit,' the court refused to view in Dr. Porter's favor a statement that on its face supported her claims, and it invaded the province of the jury to decide whether the 'on disability' response to 'why' was sufficiently clear to be accepted as showing disability motivation." 

Other problems with the district court's ruling in granting summary judgment include its finding that "it would not be reasonable" to infer that Dr. Merrens meant what he said because he gave the "on disability" answer "before the entire OB/GYN Department." The Court of Appeals states, "While it likely was not anticipatable that Dr. Merrens would make such a statement openly, the fact remains that there is first-hand evidence that he did. It was not within the province of the court in ruling on a motion for summary judgment to decide as a matter of law that Dr. Merrens's statement--which the court acknowledges was literally 'true,' --was not in fact responsive to the plain question that immediately preceded it."

The district court also improperly rejected other evidence of disability discrimination, including Dr. Merrens' email response that plaintiff was only working "at 20% of her time currently." While the district court noted this statement was "probably unwise" and it "is not reasonably possible to read it as evidence of animus or discriminatory intent," the Court of Appeals regards this as a "puzzling" rationale in disregarding Dr. Merrens' response. Dr. Merrens was not asked about the other two REI doctors, only about plaintiff, and "it would make no sense to explain that two of the three physicians were being terminated because the third was working only part time (especially if the part-time percentage were as low as the Dr. Merrens email mistakenly portrayed it)." In addition, "Doubtless DHMC would agree that the statement was 'unwise' from its point of view; but that is precisely because it would be quite   reasonable to read that express reference to limited capability as evidence of motivation based on disability."

Supreme Court rescues plaintiff's whistleblowing verdict

What does it mean to "discriminate?" The Supreme Court tells us in a case brought under the federal whistleblower statute that makes it illegal to discriminate against employees who speak out against certain forms of corporate and Wall Street fraud. The Court rules in favor of the employee with a broad definition of "discriminate."

The case is Murray v. UBS Securities, LLC, issued on February 8. Plaintiff proved at trial that he was fired because he blew the whistle on fraud against shareholders. The jury awarded him nearly $1 million in damages. The Second Circuit vacated the verdict, holding that the trial court got the jury instructions wrong because the jury was not asked to find whether plaintiff's termination was motivated by "retaliatory intent." If so, then the jury could find that plaintiff was discriminated against. The Supreme Court unanimously finds the Second Circuit got it wrong and the verdict is back on the table.

Here is what the statute says: No employer subject to Sarbanes-Oxley  “may discharge, demote,  suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of ” the employee’s protected whistleblowing activity." The placement of the word "discriminate" means Congress intended to "capture other adverse employment actions that are not specifically listed, drawing meaning from the terms 'discharge, demote, suspend, threaten, and harass' rather than imbuing those terms with a new or different meaning." 

After reviewing prior Supreme Court cases holding that "discriminate" means differential treatment, Justice Sotomayor holds that "an animus-like 'retaliatory intent' requirement is simply absent from the definition of the word 'discriminate'" and "does not matter whether the employer was motivated by retaliatory animus or was motivated, for example, by the belief that the employee might be happier in a position that did not have SEC reporting requirements." The only intent that [the statute] requires is the intent to take some adverse employment action against the whistleblowing employee 'because of' his protected whistleblowing activity."

The Supreme Court also reviews the burden-shifting framework under the statute. Congress wanted plaintiffs to prevail under Sarbanes-Oxley if the discrimination was a "contributing factor" in the adverse employment action. "The incorporation  of  the  contributing-factor  standard  in Sarbanes-Oxley reflects a judgment that 'personnel actions against employees should quite simply not be based on protected whistleblowing activities —not even a little bit." If the plaintiff can prove that discrimination was a contributing factor, to prevail, the employer must should it was have demoted or fired him "in the absence of that behavior." That burden-shifting worked as it should in this case, the Court says, as it worked "to sharpen the inquiry into the elusive factual question of intentional discrimination," as juries are given the difficult to ask of resolving discrimination cases, usually on the basis of circumstantial evidence. The statute requires that burden-shifting.

The is remanded to the Second Circuit to take up any other arguments that UBS may have in attacking the verdict. But my guess is the Second Circuit will formally affirm the verdict and Murray will have his victory.

Circuit rules against Title IX sex discrimination plaintiff against St. John's University

In a divided opinion, the Court of Appeals holds that a former St. John's University student who claims he was falsely accused of sexual misconduct  cannot sue the university for sex discrimination under Title IX because the complaint does not plausibly assert that the university ruled against him because he is a male.

The case is Roe v. St. John's University, issued on January 31. This a lengthy ruling that was argued in April 2022. The Court normally does not take this long to resolve cases, but this is a complicated one that implicates a variety of legal issues, including Rule 12 pleading standards and how plaintiffs may survive a motion to dismiss their Title IX claims arising from university discipline.

Roe is the male plaintiff. There was two incidents leading up to this claim. In the first incident, a female SJU student, Doe, affirmatively placed his hand on her fully-clothed breast, but plaintiff declined the sexual invitation and she kicked him out of her room. Doe next told SJU that plaintiff had sexually assaulted her. SJU investigated the allegation and, based on his "admission" that he had in fact engaged in physical contact of a sexual nature (touching Doe's breast), determined that plaintiff had engaged in non-consensual sexual contact, resulting in a one-semester suspension. The next episode involved "Mary Smith," who claimed that plaintiff had sexually assaulted her while he was serving his suspension. Plaintiff denied the allegation, and Doe sent out a tweet accusing plaintiff of sexual misconduct. SJU later sustained Mary Smith's complaint against plaintiff, who claims the university got the facts wrong and deviated from its procedures in ruling against him. Plaintiff was expelled and now sues SJU for sex discrimination.

While this case arrives at the Court of Appeals in a Rule 12 posture, which provides a low pleading standard for plaintiffs seeking to avoid dismissal, the Second Circuit (Sack and Parker) agrees with the district court that plaintiff does not plead a prima facie case of discrimination. The Court, in summarizing its prior decisions on these issues, says there are generally two ways for plaintiffs to win these claims: (1) the erroneous outcome claim, where the university gets it wrong based on the plaintiff's sex, and (2) the selective enforcement claim, where the university initiates disciplinary proceedings against the plaintiff because of sex or disciplined him more severely because of his sex. 

On the erroneous outcome claim, Judge Sack writes that plaintiff cannot meet the minimal prima facie hurdle because, while the Court accepts plaintiff's claim that the university got it wrong on the Doe allegation, the wrong outcome does not necessarily mean it was reached because of gender bias. Under the Iqbal/Twonbly pleading standards the Supreme Court adopted in 2009, the Second Circuit holds that "we cannot turn a blind eye to an 'obvious alternative explanation' for alleged facts that undermine a plaintiff's theory of liability," that is, that "SJU accepted [Plaintiff's] concession that he engaged in sexual contact with Doe but did not credit his assertion that Doe initiated the contact." 

In addition, even if the proceedings against plaintiff proceeded in a "less-than-flawless manner," involving some procedural irregularities, that does not mean the university practiced sex discrimination in ruling against plaintiff. The Court cites a First Circuit case in stating that "even allegations of 'potential serious flaws' in a Title IX plaintiff's disciplinary proceedings may fail to allege 'sufficient facts to support a plausible inference that the irregularities are attributable to sex bias.'" In other words, procedural errors are not always enough, even in a Rule 12 posture. While plaintiff says the wrong result against him is evidence of gender bias, the Court of Appeals disagrees, as a flawed proceeding that led to the wrong result combined with a conclusory allegation of gender bias is not enough to survive a motion to dismiss.

As for the selective enforcement claim, while plaintiff claims SJU treated plaintiff differently than Doe, who had harassed and defamed him in an anonymous tweet, the Court of Appeals finds that plaintiff and Doe were not similarly-situated, as Doe's misconduct is far less serious than what SJU claims plaintiff did. 

What about Mary Smith's allegation against plaintiff? He claims that SJU ruled against him on that complaint because of his sex, but the Court of Appeals again finds plaintiff has not pled a plausible claim under Rule 12. Here again, the Court emphasizes that any procedural irregularities against plaintiff in the Smith proceeding are not enough to assert a Title IX violation. Plaintiffs must plead "clear" procedural irregularities, and he does not plead enough facts to assert that the University ruled against him as a means to avoid public criticism that it was not taking sexual misconduct allegations seriously. The Court finds that public pressure is not enough to proceed with this case under Rule 12, and that the plaintiff must also identify clear procedural irregularities by the university in ruling against him. Again, the Court finds no such irregularities.

 I recall a time when procedural irregularities presented plaintiffs with a strong argument that the defendants had discriminated against them. This usually happened in the employment context. Cases do hold that universities have leeway to deviate from their procedures in disciplining students, but the Court seems to be charting a new path, at least under Title IX, that the procedural deviations must be significant in order for the plaintiff to win the case.

A long dissent by Judge Menashi claims the majority has misinterpreted Circuit precedent on these issues and improperly denied plaintiff the opportunity to pursue discovery on his claims. He argues that cases have not limited plaintiffs to the "erroneous outcome" and "selective enforcement" theories of liability, and that there are other ways for aggrieved university students to prove discrimination. Menashi also believes the majority has effectively abandoned the low pleading standard normally afforded to discrimination plaintiffs.

The forceful dissent suggests to me that plaintiff's attorneys will seen en banc review on these issues, where all the Circuit judges re-hear the case. Reading all the opinions here, it looks like the state of the law in the Second Circuit on Title IX discrimination is in flux. The Court of Appeals is normally loathe to hear cases en banc, but I have a feeling this case will reach the full court.

Court of Appeals reinstates religious accommodation case under Title VII

The Court of Appeals holds that a female corrections officer who is also a practicing Muslim may sue the Department of Corrections after a male supervisor forced her to remove her hijab in his presence, contrary to her religious principles. The Court holds that, in requiring her to remove the hijab in the presence of a man outside of her family, DOCCS subjected her to an adverse action in violation of Title VII's prohibition against religious discrimination.

The case is Billings v. Murphy, a summary order issued on February 6. I briefed and argued the appeal. The case was brought by Frederick K. Brewington, Esq. 

The case began when plaintiff requested a religious accommodation that would allow her to wear a hijab at work. Since she worked in a state prison, the concern was that an inmate could grab the hijab and choke her, so DOCCS directed her to submit to a demonstration showing the hijab could be removed without causing her any harm. A male supervisor, Artuz, was assigned to perform the demonstration. Plaintiff objected to Artuz's role in the demonstration because that would mean she would have to remove the hijab in his presence. Artuz told her to comply with his demand anyway, and she did, suffering a panic attack moments later over the violation of her religious principles. Plaintiff's religious accommodation request sought to have a female officer conduct the demonstration with her. The argument is that having a man present during the demonstration violated her religious rights.

While the district court, in dismissing the case under Rule 12(b)(6), held that plaintiff did not suffer an adverse action, dooming her religious discrimination claim, the Court of Appeals reverses and says plaintiff makes out a prima facie case. Defendants acknowledged at oral argument that the denial of a reasonable religious accommodation absent a showing of undue hardship alters the "terms, conditions, or privileges of employment" under Title VII.

The Court of Appeals (Lohier, Nardini and Jacobs) thus holds, "We conclude that the refusal to accommodate Billings’s request to remove her hijab in front of a female supervisor constitutes an adverse employment action because it is a 'materially adverse change in the terms and conditions of employment' that is 'more disruptive than a mere inconvenience or an alteration of job responsibilities.' While the district court held that plaintiff was required to allege an additional adverse action beyond the denial of her request for a religious accommodation, that was incorrect, the Second Circuit holds. The reasonable accommodation denial is the adverse action. I do not believe the Court of Appeals has previously reached such a holding, which is why the Department of Justice submitted an amicus brief on this appeal and shared the oral argument with me.

Plaintiff also asserts an inference of discrimination, the Court of Appeals says, rejecting the district court's contrary conclusion. "Billings alleges that she began wearing her hijab on or around April 28, 2017, and that she was dismissed on May 2, 2017, removed from payroll on May 27, 2017, and unable to return to work from May to December 2017.  Given Billings’s 'minimal' burden at this stage, these allegations support a plausible inference of discrimination."

Yelling at police officer, "Turn your lights on, asshole," is protected under the First Amendment

This is a pure First Amendment case that does not involve classic protesting or political speech. Instead, it involves foul language directed toward a police officer. The Court of Appeals says the plaintiff has a case.

The case is Rupp v. City of Buffalo, issued on January 31. It all started when plaintiff and his wife saw someone driving their car at night without any headlights. The motorist almost hit two pedestrians. Plaintiff, who was also a pedestrian, shouted at the driver, "turn your lights on, asshole." The driver was not just any driver, however. After Rupp called the driver an asshole, he realized the driver was behind the wheel of a City of Buffalo police car. The driver was a police officer. He told Rupp he could be arrested for what he had just said. When Rupp reminded the officer that he cannot drive his car without the headlights activated and had almost caused a pedestrian accident, defendant exited the car and told Rupp he was detained. When other officers arrived, Rupp -- who is an attorney -- told them that police officers not exempt from the rule that cars must drive at night with their headlights on. Rupp was arrested for violating the City's noise ordinance. 

Plaintiff sued under the First Amendment. The district court noted that while cases hold that you can mouth off to the police under the First Amendment, those cases do not help Rupp because he did not know he was shouting at a police officer when he called him an asshole.

The Court of Appeals finds that the district court had resolved numerous disputed factual issues in granting summary judgment, essentially taking these disputes away from the jury. While the district court said that Rupp has no case because he was unaware he was addressing a police officer, "not knowing that the vehicle's driver was a police had no bearing on whether Rupp's shout was speech on a matter of public concern" and therefore protected under the First Amendment. "Rupp did not need to know who was driving in the dark without headlights in order to understand that such conduct was dangerous. And he had not shouted at the driver until he saw the vehicle nearly hit two pedestrians." And while the district court noted that plaintiff had used an expletive, that does not mean the police had a legitimate basis to arrest him. The Court of Appeals reasons:

a jury would be entitled to view a shout as unreasonable noise if all five words were "asshole" or other expletives; but in fact Rupp shouted "turn your lights on, asshole." We have no doubt that he was upset; but his shout was an exhortation that was forward-looking in the interest of public safety. A rational juror could easily view the shout as an attempt to avert a possible accident by (a) a vehicle without lights, (b) whose driver appeared not to know he was driving without lights, (c) who had just had to stop for two pedestrians in his path attempting to cross the street, and (d) who even after that abrupt stop, resumed driving without headlights--and thus could easily view the shout as eminently reasonable. 

As for the noise ordinance arrest, the Court of Appeals says the jury may find there was no probable cause for that because it may find that Rupp's shout was neither excessive nor unreasonable and that Rupp instead intended to protect public safety in telling the driver to turn on his lights. Again, the Court of Appeals:

Given that the intent of the Buffalo noise ordinance is in part to "promote health, safety and welfare" in the City, we see no valid basis for concluding that it was intended to criminalize a brief shout intended to urge a person driving in the dark without headlights--especially when his vehicle has just nearly hit two pedestrians--to turn on his lights. Although the court acknowledged at the start of its decision that    McAlister turned his lights back off after his encounter with the two pedestrians, it never mentioned that fact in its discussion of the circumstances surrounding Rupp's shout. Instead, it mentioned at least three times that Rupp's shout contained an "expletive," despite the fact that the   presence of an expletive did not eliminate or diminish the character of the shout as a warning.