Lawsuit among musicians shows the difficulties in winning a defamation case in New York

This is a complex defamation claim in which a woman publicly claimed her former mentor subjected her to sexual harassment. The mentor claims this was untrue and he sued her for defamation. The Court of Appeals holds there is no actionable defamation because the woman's statements were protected opinion. Since opinion is distinct from factual statements, there is no case.

The case is Coleman v. Grand, issued on November 3. A few preliminaries: first, this case was argued in May 2022 but then on hold because the New York Court of Appeals was considering whether the anti-SLAPP law (prohibiting strategic lawsuits against public participation) had retroactive effect, which would have impacted this case. Turns out the State Court of Appeals held the law was not retroactive. Second, the parties in this case are musicians: the plaintiff mentored the defendant on saxophone. 

In 2017, defendant circulated a letter to about 40 friends and colleagues in the music industry, claiming she had an intermittent quid quo quo sexual relationship with plaintiff, a prominent musician who was 35 years her senior. In the letter, defendant said the plaintiff pressured her into a sexual relationship in exchange for his training and mentorship, and that he routinely pressured her to be intimate with him, made her share a hotel room with him when they traveled for work, would not take "no" for an answer, and once got into bed with her and kissed her after she told him she did not want to sleep with him. She described these incidents as sexual harassment.

Under New York law, unflattering but false facts are defamation. Opinion is not defamation. The Court of Appeals (Sullivan, Chin and Menashi [in dissent]) holds as follows:

(1) claiming that plaintiff "convinced" her to be intimate is not defamation because we don't have enough facts to suggest anything beyond her regrets at this intimacy, and the more reasonable interpretation is that plaintiff merely persuaded defendant to become intimate. This portion of defendant's letter instead describes her "subjective feelings about their relationship," or her nonactionable opinion.

(2) her claim that plaintiff sexually harassed her is also nonactionable because "sexual harassment" "is often a subjective inquiry that permits differing opinions among those involved in, or aware of, the alleged conduct." New York courts hold that allegations of harassment are not defamation because "harassment" is an imprecise term. While the defendant claimed the harassment consisted of getting angry when she refused him sex, photographing her while sleeping, and woke her up half-naked and kissing her on the lips, the Court holds that any conclusion that this amounted to sexual harassment is subjective and provides no basis for a defamation claim. 

(3) defendant's claim that the harassment began after she ended the relationship is also not defamatory because her statement that she no longer wanted a relationship with plaintiff does not expose him to shame or public ridicule, only discomfort. Defamation requires public contempt, not discomfort. As for the harassment allegation, for the reasons outlined above, that is not defamatory.

 

(4) the allegation that defendant was forced to go to plaintiff's room is not actionable, either, as plaintiff takes the defendant's statement out of context; her own letter states she "agreed" to share the room with plaintiff, and nothing in the letter implies that plaintiff physically forced her into the room with him.

 

This case proves how difficult it is to win a defamation case in New York. It is hard to distinguish between nonactionable opinion and actionable false facts. The lengthy factual/opinion analysis in this case highlights the plaintiff's hurdle in bringing these cases to trial. The dissent further shows the complexities of the case. 

 

The dissent from Judge Menashi summarizes defendant's letter this way:

 

 In a letter to friends and colleagues, Maria Grand accused Steven Coleman of sexually harassing her during their professional relationship as musicians. According to Grand, Coleman started the relationship by telling her—when she was seventeen-years old—that he wanted to have sex with her. As Grand’s saxophone teacher, Coleman told Grand “many, many times that the best thing” she could do to learn music was to have sex with male musicians. He even told her “not to contact him [if] [she] didn’t plan on having sex with him.” After Coleman “convinced [Grand] to be intimate with him,” Coleman “started hiring [her] to work with him too.” But when he gave her work, he would “get angry and tell [her] not to finish the work, because [she] wouldn’t sleep with him.” And “[w]henever he offered [her] more work, he would wait until [she] actually slept with him to solidify the dates.” 
 

While on tour, Grand “would have to sleep with [Coleman] at the end of the day” or he would “be absolutely angry and sometimes refuse to rehearse.” “He would relentlessly ask [her] to have sex with him.” He allegedly told Grand that she “owed him ‘a lifetime of pussy’ for what he had taught [her].” After a workshop, Grand and Coleman stayed in the same room together, but despite Grand’s insistence that she would not have sex with Coleman, she woke up to him “half-naked, kissing [her] on the lips.” When Grand’s boyfriend showed up at a concert, Coleman became “extremely angry” and told Grand that “he didn’t want [her] to play on some other gigs he had previously asked [her] to sit in on.”  When Grand refused to have a threesome with Coleman and another woman, Coleman “became furious at [her] for saying no and told [her] not to come to the show that day.” As Grand summarized the relationship, “when I stopped agreeing to sleep with him he stopped granting me access to his knowledge, and he made my professional life with him a complete nightmare.”

This, Menashi says, is actionable defamation. He chides the majority: "The majority might not consider me a right-thinking person, but I would have a negative opinion of someone who behaved the way that Grand described. And it seems to me that her account is either true or false."

 

 

 

A cautionary tale on drafting and filing the notice of appeal

This is a cautionary tale about how to file a notice of appeal. The Court of Appeals holds the notice of appeal was defective because it did not clarify what issues the appellant wanted to raise. It was also untimely.

The case is Coker v. Goldberg & Associates, a summary order issued on October 28. Here's the thing about notices of appeal in the federal system: its requirements are jurisdictional, which means failure to comply with the rules is death. It is very difficult to get more time to file a late notice of appeal, and a defective notice of appeal will not be lightly excused. 

The context is that plaintiff worked for a law firm and was denied overtime pay. The district court granted summary judgment for the plaintiff in the amount of nearly $5,000. The court also granted plaintiff's motion for attorneys' fees and costs for approximately $45,000. It is not unusual for the fees to greatly exceed the damages. That is what happened here. The law firm wants to appeal from both the summary judgment and attorneys' fees order.

We have two problems: first the notice of appeal says the appellant wanted to appeal from the district court's ruling, dated May 21, 2024, which covered attorneys' fees. But the defendant's notice of appeal did not make reference to the district court's order, dated March 1, 2024, which granted summary judgment on the plaintiff's wage-and-hour claim under the Fair Labor Standards Act. Under the Federal Rules of Appellate Procedure, "a notice of appeal must designate the judgment ... from which the appeal is taken." Unfortunately for defendant-appellant, since the notice of appeal did not refer to the March 1, 2024 FLSA judgment, that issue was not preserved for appeal.

The second problem is timing. The notice of appeal was filed more than 30 days after the March 1, 2024 judgment granting summary judgment on the FLSA claim. The pendency of the plaintiff's attorneys' fees motion did not extend the deadline to appeal the summary judgment decision. Under Second Circuit law, "a decision on the merits is a final decision [under the final judgment statute] whether or not there remains for adjudication a request for attorneys' fees." Nor did the trial court enter an order delaying the running of the time to file an appeal until the entry or the order disposing of the fee motion." What it means is the Court of Appeals (Wesley, Lohier and Merriam) lacks jurisdiction to resolve the appeal from the March 1, 2024 FLSA judgment.

If you are uncertain about whether the notice of appeal contains the correct language, make sure it references the judgments you which to challenge on appeal, and if one final judgment was entered, you can identify that judgment in the notice of appeal. If you are unsure whether the notice of appeal is timely, file it early and then have the Court of Appeals place the appeal on hold while motions are pending in the district court.

The only issue properly before the Second Circuit, then, is the attorneys' fees ruling. But if you handle this kind of work, you know that challenging an attorneys' fees ruling on appeal very difficult, though not impossible. The Second Circuit will not second-guess the trial court's judgment about how much time was needed to prosecute the case, as the trial judge knows the procedural history of the case, and all the sub-issues, far more than an appellate court ever will. While the district court reduced the overall fees by 25% and not the requested 50% reduction, that determination fell with the trial court's broad discretion, and the Second Circuit affirms.

Off-campus social media meme ridiculing George Floyd is entitled to First Amendment protection

The Court of Appeals has ruled that a school district in Sullivan County did not have the right to discipline a student who circulated off-campus a racially-insensitive social media meme relating to the murder of George Floyd. The Circuit navigates two of the leading First Amendment cases governing students speech rights and a school district's obligation to teach racial sensitivity. 

The case is Leroy v. Livingston Manor School District, issued on October 30. Plaintiff was a high school student who posted a staged photo of his friends depicting someone (in the role of a police officer) with his knee on the neck of a classmate (in the role of George Floyd), with the caption, "Cops got another." This photo went on social media outside the school campus, after school hours. Plaintiff intended the photo as a joke, but once he saw the backlash on campus, he pulled it from social media. The district suspended plaintiff and barred him from attending various school activities for the rest of the school year. 

Two Supreme Court cases guide this ruling. First, in Tinker v. Des Moines Independent  Community Sch. Dist., the Court said in 1969 that students still have speech rights on campus but the district may regulate that speech if necessary to avoid substantial disorder or invasion of the rights of others. In that case, the Court said the district court could not order high school students to remove their anti-Vietnam War armbands, even though this protest did cause some discomfort on campus. In Mahoney Sch. Dist. v. B.L., the Court held in 2022 that schools have authority to regulate off-campus speech in limited circumstances. Courts have to consider (1) the nature of the speech, (2) when, where and how the student spoke, and (3) the school's interest in regulating the speech. In Mahoney, the Court said a cheerleader, who used profanity in complaining about not making the cheerleading squad, had the right to criticize the school without discipline. The speech in Mahoney did not quite have the gravity of the anti-war speech in Tinker, but speech is speech, serious or not. These balancing tests, like all balancing tests, gives judges some discretion to resolve the case one way or the other.

This is not an easy case for the Second Circuit (Parker, Perez and Robinson), which issued 70 pages of legal analysis, including a concurrence, carefully reviewing the impact plaintiff's speech had on the student community when the nation was focused on police brutality and institutional racism. In response to the meme, the district did have students attend racial awareness programs, invited law enforcement to monitor the campus for a brief period, and generally had to deal with enhanced debate on the George Floyd matter. Plaintiff and his friends were even told to stay home for a few days "for their own safety." So the speech did disrupt the school environment,

But the Second Circuit holds that the discipline against plaintiff violated the First Amendment because (1) the speech did not contain any threats of violence or fighting words, (2) the speech was off-campus, and (3) the school's interest in teaching racial insensitivity does not outweigh plaintiff's speech rights, especially since, in the Mahoney case, the Supreme Court said the student's off-campus social media vulgarities were also entitled to First Amendment protection, and the district in this case found other ways to teach proper values to its students, including an in-school assembly and facilitating a student demonstration. 

This case is significant because of the social media element. There was no internet when the Tinker case issued, and I guess the closest parallel would have been an off-campus student newspaper that made its way onto campus. The Second Circuit notes that, for better or worse, students largely communicate with each other through social media, and they will say or do stupid or silly things that will have some impact on the school environment.

How to object to a magistrate's report and recommendation

In the federal system, district judges (who serve for life) may ask the magistrate judges (who serve a fixed term) to issue a ruling on a motion that the district court can review and either approve, reject, or modify the ruling. That increases attorneys' work, as they first have to present their arguments to the magistrate judge and then challenge that ruling when it reaches the district judge. We also have a set of rules guiding how you can make the objections. This case tells us how it all works, and the Second Circuit clarifies what lawyers can and cannot do in objecting to the magistrate's ruling.

The case is Nambiar v. Central Orthopedic Group, LLP, issued on October 28. I cover the merits of plaintiff's employment discrimination claims at these links. This time around, I talk about the magistrate's report and the district court's review of the same.

Under the rules, if the magistrate's report is objectionable, the lawyer has to file objections with the district judge, which reviews the magistrate's decision de novo, or from scratch without any deference to the magistrate judge. If you don't file an objection, then you waive your right to bring an appeal to the Second Circuit on those issues. A proper objection cannot raise issues that were not presented to the magistrate judge. But some trial courts in the Second Circuit hold that you cannot simply raise the same issues to the district court that you presented to the magistrate judge. The Second Circuit (Merriam, Lynch and Kahn) rejects that approach, noting that this would "place[] a litigant in an impossible position." While the party cannot raise new arguments for the first time in challenging the magistrate's report, the rule that she cannot raise the same arguments in that capacity may leave that party with nothing to say at all. Here is the proper approach:

a litigant objecting to an R&R may not simply rest on the briefs considered by the magistrate judge; she must lodge a specific objection to some specific aspect of the R&R. But the objection not only may, but often must, repeat arguments that were previously raised. When a timely filed objection raises and properly briefs arguments previously rejected by the magistrate judge, the district judge must review those arguments de novo. The District Judge here, understandably following an approach that has gone unchecked for some years, rejected Nambiar's proper objections to certain portions of the R&R on the ground that the same arguments raised in the objection were also made to the Magistrate Judge. That was error. Because Nambiar properly objected to the R&R's findings as to her claims of sex discrimination and aiding and abetting discrimination, the District Judge should have reviewed de novo the Magistrate Judge's recommended disposition of those claims.

Retaliation case fails because management was working on plaintiff's termination prior to her EEOC charge

This retaliation case reminds us that you cannot win your case under Title VII or state law if management was already working toward your termination even before you had engaged in protected activity by, for example, filing a discrimination charge with the EEOC.

The case is Nambiar v. Central Ortopedic Group, LLP, issued on October 28. The disparate treatment portion of the case is discussed at this link. But plaintiff also asserted a retaliation claim because she filed an EEOC charge on March 16, 2016 and was fired several days later. That's good timing for a retaliation claim. But we have a problem. 

The Court of Appeals (Lynch, Merriam and Kahn) finds that plaintiff cannot prove a causal connection between the EEOC charge and her termination because the evidence shows that defendants had already decided to terminate her employment before she filed the EEOC charge. In January 2016, defendants told plaintiff that she had to sign a revised contract (due to performance issues), and one month later, again before the EEOC charge, they told her to sign the contract or she would be fired. She repeatedly refused to sign the revised contract. This back and forth continued prior to the filing of plaintiff's EEOC charge, and five days before the charge was filed, defendants were already looking for her replacement.

What it all means is that "before Nambiar ever mentioned an EEOC complaint, the wheels were already in motion to terminate Nambiar's employment  -- as she was well aware," as the EEOC charge stated that defendants were "forcing her out of her position" and her termination was a "fait accompli" when she met with management on February 25, 2016.

The central case in this area is Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87 (2d Cir. 2001), which holds that "where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." This is a key principle in the Second Circuit, and it has led to many a retaliation claim's demise, even if the actual decision to fire post-dated the protected activity.

Sexist comments and suspicious timing does not give rise to sex discrimination claim

The Court of Appeals holds that a female doctor cannot win her sex discrimination claim arising from the termination of her employment, even though she asserts that male doctors were treated more favorably and sexist comments about her were thrown around the workplace.

The case is Nambiar v. Central Orthopedic Group, LLP, issued on October 28. This case does not break new ground in the world of sex discrimination law. But we do see how settled Second Circuit rules apply to cases like this. 

In response to plaintiff's prima facie case of sex discrimination, management proved they had received "numerous complaints" about plaintiff, which required the medical practice to take remedial measures. The complaints had to do with plaintiff's "contentious interactions" and "heated conversations" with the staff. Other doctors were aware of patient and staff complaints about her. To reverse summary judgment and force a trial on whether the defendants had discriminated against her, plaintiff has to show these justifications for her termination were a pretext for discrimination. The Second Circuit says plaintiff does not have the evidence.

First, plaintiff argues that two male doctors were treated better than she was. But the comparators are not really comparators. One doctor, who replaced plaintiff, was hired on less favorable terms than plaintiff had been, and his contract (unlike plaintiff) did not include a path to partnership. The other male doctor had to sign a new contract that extended his probationary period and was made partner only after he "cleaned up his act." As a matter of law, these doctors are not comparable to plaintiff. The key cite for this principle is Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000).

Second, plaintiff cites sexist comments. That kind of evidence can certainly get you a trial if you can connect the comments to the decision to fire the plaintiff. But she cannot do that, the Court of Appeals (Lynch, Merriam and Kahn) says. 

While a physician partner, Checo, told plaintiff that "other partners" had referred to the pain management department staff as "girls" and that "there is too much drama ... because they are female," and plaintiff "was told" that someone said that patients should not be sent to plaintiff "when she is having her period because ... they are all going to be ... girls together," these gender stereotypes are not enough for trial because plaintiff did not hear them directly, she does not know the context in which the comments were made, or even who said them. Plaintiff does not assert these comments were made close in time to the termination of her employment or that they had anything to do with her termination.

Another physician partner, Silverberg, told plaintiff that patients and staff had complained that she was too unfriendly, too demanding, too aggressive and had to be "sweeter, kinder, and more gentle" since it was a small practice and it relied on referrals. The Second Circuit says these criticisms, which advance gender stereotypes that plaintiff was not sufficiently feminine in the office, are not enough for trial because they came from patients and staff but not from any physician partners. Under this analysis, plaintiff cannot show these critiques factored into the decision to terminate her employment.

Third, plaintiff challenges the timing of her termination, noting that, after seeing thousands of patients, the seven complaints against her were close in time to her termination. But, the Court says, plaintiff cannot show that "defendants colluded to produce or create this evidence," which was the case in Edelman v. NYU Langone Health Sys., 141 F.4th 28 (2d Cir. 2025). Nor has plaintiff suggested these criticisms were falsified.

 

 

Hostile work environment survives motion to dismiss

This case involves allegations of racial discrimination. In this blog post, I covered the disparate treatment analysis, which found that plaintiff's complaint, notwithstanding the district court's ruling, does assert such a claim. But the complaint also asserts a hostile work environment claim, and that claim will proceed to discovery as well.

The case is Brown v. Montefiore Health System, Inc., issued on October 23. In the disparate treatment portion of the ruling, the Court of Appeals (Bianco, Wesley and Robinson) held that a series of suspicious adverse actions and circumstances give rise to an inference of discriminatory intent. That evidence also supports the hostile work environment claim.

But in addition to those disparate treatment allegations, we have other evidence that also gives rise to a racial harassment case. Under the "totality of the circumstances" test guiding these cases, we have the following allegations:

[The Complaint] alleges that “[Brown] was left out of research assignments, had duties and responsibilities removed from her without notice, [and was] berated and demeaned before her colleagues.” The amended complaint further alleges that Brown was subject to “excessive scrutinization and micromanaging of her work, actions[,] and whereabouts, [] isolation from her co-workers, [the] removal of duties  and responsibilities, [and the] denial of professional opportunities” which, “coupled with the continuous denial of her rightfully earned benefits, [was] all a part of the ongoing discrimination which [] created a very hostile work environment affecting [her] physical, mental and emotional” condition. 

The Court writes, "If proven, the alleged conduct, when considered in its totality and construed in the light most favorable to Brown, could plausibly be sufficiently pervasive or severe to constitute a hostile work environment."

Note that none of these allegations involve explicit racial discrimination, such as racial epithets or jokes. But you can still have a hostile work environment claim without those incidents. As the Court of Appeals writes, "although these alleged instances are not specifically linked to Plaintiff’s status in a protected class (such as with specific alleged comments), it is well-settled that '[f]acially neutral incidents may be included, of course, among the ‘totality of the circumstances’ that courts consider in any hostile work environment claim.'" The case for that proposition is Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002). Citation to Alfano shows this is not a new legal principle in the Second Circuit, but practitioners may overlook it since we associate hostile work environment claims with explicit racist or sexist comments or gestures. In fact, the work environment may be hostile in violation of Title VII if the plaintiff is simply treated poorly because of her race or gender.

In sum, the Court writes, "in reviewing the totality of the circumstances, especially where Brown alleges that she and two other named Black co-workers were treated differently than similarly situated white co-workers in a number of material respects, she has plausibly alleged that the alleged harassment could be related to her status in a protected class, even if such status was not referenced specifically by anyone in connection with the alleged conduct."

Racial discrimination claim is reinstated on appeal, providing guidance on avoiding Rule 12(b)(6) dismissals

The Court of Appeals holds that a race discrimination plaintiff has set forth enough allegations to proceed to discovery, overturning the trial court's finding that the complaint was not good enough to survive a Rule 12 motion to dismiss. The Court of Appeals makes some interesting observations about pleading discrimination cases, and if you represent plaintiffs in these disputes, then keep reading.

The case is Brown v. Montefiore Health System, a summary order issued on October 23. Prior to her termination from the hospital, plaintiff worked there for more than 20 years as a dietician. She claims her white supervisor, Pappo, was the discriminator. As summarized by the Second Circuit (Bianco, Wesley and Robinson), here are the primary allegations:

(1) Brown was the only Black employee in MMC’s Clinical Nutrition Department,  (2) Pappo, since being placed in her role as Director of the Department, has hired only one other Black employee, despite numerous hires over the years, (3) Pappo was enthusiastic about that employee’s qualifications upon reviewing her written application materials, but after the applicant arrived for her interview—thus revealing her race—Pappo instead opted to hire a less qualified white male, (4) Pappo subsequently hired that Black applicant for a subordinate position as a “relief” dietician only after receiving pressure from staff, (5) another Black former employee, who was terminated in 2019 and replaced by a white employee, also complained of discrimination by Pappo, including that Pappo “pressured, intimidated, and discriminated against her, failed to properly train her, and openly mocked and scolded her in front of other  employees[,]” which, according to Brown, was the “exact same treatment [she] was subjected to at the hands of [Pappo],” and (6) Brown heard Pappo “disparag[e] communities which have [] largely Black demographic[s] in favor of those with largely white demographic[s].”

All of this asserts a pattern of racial hostility by Pappo, both against plaintiff and against other Black employees. No explicit racial epithets here, but, taking the allegations in the complaint as true, it appears Pappo did not want Black employees working for her. But there is more. Plaintiff alleges that:

Pappo, motivated by this racial animus, engaged in a campaign of harassment to prompt Brown’s termination, including refusing to allow Brown to cover a particular colleague’s work shifts and offering those shifts to white dieticians, refusing to provide Brown with the proper ergonomic workstation to accommodate her medical needs resulting from a work-related injury, initially denying her the opportunity to serve as a preceptor for New York University oncology interns while all other dieticians in the department (who were white) served in that role, and submitting false information regarding Brown’s workers’ compensation case "in hopes that [Brown] would be terminated or resign."

Taken as a whole, these allegations permit the plausible inference that plaintiff was fired because of her race. Again, no racial epithets, but a pattern of mistreatment visited upon plaintiff and other Black employees. The case will proceed to discovery.

This holding may not seem remarkable, but it is. Many cases are dismissed under Rule 12(b)(6) because, no matter how badly the plaintiff was treated, the trial court does not think the allegations permit an inference of racial or sex discrimination. These rulings are often reversed on appeal through summary orders, but not always. Judges are required, under Iqbal, to use their common experience in issuing these rulings, but they often do not see what Black employees, and others protected under Title VII, see: at some point, a pattern of bad treatment may prove intentional discrimination.

In reaching this holding, the Court of Appeals applies the following legal principles relevant to discrimination claims. They all stem from Second Circuit case law, and they may be relevant to your case:

1. Claims under the New York State Human Rights Law are analyzed under New York City HRL standards. The Second Circuit has been saying this for about a year now, but in this case the Court says so without even citing cases in support of that proposition. The NYSHRL does not expressly call for that statutory construction, at least in the context of aligning the state law with the city law, but the state law does say it should be broadly interpreted. The only place to look in fulfilling that objective would be the NYCHRL.

2.  “[e]vidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer’s offered explanation for an employment decision regarding a particular individual masks a discriminatory motive.” Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990).

3. "with respect to a hostile work environment claim, we have emphasized that, 'because the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim.'” The case for that proposition is Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000), a case I argued 25 years ago. The Court of Appeals holds that Brown does have a viable hostile work environment case, which I will discuss in a future blog post. 

4. “an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to: . . . the sequence of events leading to the plaintiff’s discharge.” That's from Liebowitz v. Cornell Univ., 584 F.3d 487 (2d Cir. 2009). That is something of a catch-all proposition, but a suspicious sequence of events may support an inference of discrimination. I saw this principle surface frequently in the 1990s but not so much lately. But this is still good law.

5. "even if alleged 'instances of disparate treatment may not separately rise to the level of adverse employment actions, [a plaintiff] is permitted to create a mosaic with the bits and pieces of available evidence that, taken together, support a plausible inference of intentional discrimination.'” The cite for that is Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023). The "mosaic" language is relatively new, but it's another "totality of the circumstances" doctrine that plaintiffs will use when there are no racial epithets or other race-specific allegations, but instead a series of adverse personnel actions that in their totality altered the work environment for the worse.

6. “Actions taken by an employer that disadvantage an employee for no logical reason constitute strong evidence of an intent to discriminate.” That derives from Stratton v. Dept. of the Aging, 132 F.3d 869 (2d Cir. 1997). I want to talk about this at some length. Stratton was decided nearly 30 years ago, written by then-district judge Denny Chin before he was elevated to the Second Circuit. I recall seeing that footnote at the time and using that language to avoid Rule 12 and summary judgment dismissals. That strategy did not always work, but I don't know why; maybe it's because that language appears in a footnote in Stratton. Maybe judges think that language will allow any case involving bad workplace decisionmaking to reach trial, thereby undermining the employment at-will principle and the doctrine that courts are not "super-personnel" departments, unable to right every injustice in the workplace. Jurors may draw the inference set out in the Stratton footnote, but maybe judges were looking for more evidence than simply inexplicably bad treatment. Excluding the Stratton case itself, where it originated, as well as this case, that principle, so useful to plaintiffs in Title VII cases, has been cited exactly 8 times. It has only been cited by the Second Circuit once previously, in May 2025, in Flanagan v. Girl Scouts of Suffolk County, a summary order reported at 2025 WL 1501751 (May 27, 2025), which reinstated a race discrimination case. (I argued Flanagan and cited Stratton in the reply brief). While this language surfaced from time to time in district court rulings, it has been dormant in the Court of Appeals until this year. Two of the judges on the Flanagan panel sat on Brown's case (Wesley and Bianco), so they must have remembered this language from Flanagan.

This case is a summary order, so its precedential value is limited. But you can still cite summary orders provided you note in your brief that the case is a summary order. Even so, the principles above derive from precedential rulings, which remain good law until the Supreme Court says otherwise.

A good primer on why downsizing cases are difficult to win under the Age Discrimination in Employment Act

Another case from the Second Circuit reinforces how difficult it is to win an employment discrimination case, particularly when the plaintiff is fired due to corporate restructuring motivated by financial distress.

The case is Tillman v. Gernadier Realty Corp., a summary order issued on October 15. Plaintiff worked for this property management corporation where she held several roles relating to energy conservation. She claims she was fired after 40 years of employment due to her age.

The case does not survive summary judgment, however. One of defendant's largest clients was Starrett City a housing development in Brooklyn and defendant's most profitable contract. Much of plaintiff's work was devoted to Starrett City, and that contract contributed to more than one-third of defendant's revenue. The loss of that contract was a huge blow to plaintiff's employer. You are probably thinking this is a standard downsizing case, where management has to let people go to stay afloat financially, but the twist is that defendant first told plaintiff that she would remain in her position despite the organizational restructuring, as she had potential to contribute to other energy projects. But they fired her anyway.

The case fails, the Court of Appeals (Wesley, Bianco and Robinson) holds, because a consulting firm that management retained to evaluate its options recommended a comprehensive restructuring of the department overseen by plaintiff; this led to a new position for plaintiff. But the restructuring continued in the months that followed and the company pursued more cost-saving options, including outsourcing. After plaintiff rejected an outsourcing option that would have paid her $3,000 per month, she was terminated, and her duties were undertaken by third-party consultants. 

The Second Circuit says plaintiff cannot overcome this evidence that she was terminated for age-neutral reasons. She does point out that management asked her at one point how much longer she planned to work. But that is not evidence of age discrimination under Rankin v. Wyatt Co., 125 F.3d 55 (2d Cir. 1997). Asking questions about an employee's retirement plans does not violate the civil rights laws. That principle will remain with us forever, and it allows management to broach the subject without fear of being sued, unless management does so in an obnoxious and discriminatory manner. But merely asking an older worker about her retirement plans is not enough to prove age discrimination. While the Court does not cite this principle, it is also true that firing older workers to save money id not always proof that management was practicing age discrimination. And, while plaintiff argued that she was demoted and had to work under a much younger supervisor with a lower title in a department that did not "make sense," the Court returns to the company's need to restructure the company to save money. Nor is the Court of Appeals persuaded by plaintiff's statistical evidence that the company had a pattern of firing older employees

 

Warrantless police seach of parents' home on Long Island did not violate Constitution

The police in Rockville Centre, on Long Island, searched the property of Charles and Geraldine Griffin. They have since passed away. Their children, Caril and Craig, nonetheless claim the house was searched in violation of the Fourth Amendment. The issue is whether the children may pursue this case even though they did not own the house at the time of the search, and whether the police conducted the searched the property in good faith.

The case is Simmons v. Incorporated Village of Rockville Centre, a summary order issued on October 21. You have a reasonable expectation of privacy in your own house and on your property; that legal principle is rock-solid. But what if you don't live there but visit regularly? That is the case here. 

The problem is the Complaint is not specific on this issue. Caril asserts that she "regularly" spent time at her parents' property, but "says nothing about how frequently she stayed over of whether she had been staying over around the time of the alleged searches." Holiday visits would not be enough, the Court says. Nor is it enough to assert she maintained a bedroom on the property. The Court writes, "In the end, these sparse allegations and the lack of temporal context regarding Simmons’s  connection  to  the  Griffins’ property  render  impossible  any assessment of whether Simmons plausibly enjoyed a sufficient degree of acceptance into the Griffin household to trigger the Fourth Amendment’s protections." Caril's case was therefore properly dismissed at the Rule 12 stage, before she could take any discovery on the case.

Craig, the brother, also asserts a claim, which was dismissed on summary judgment, post-discovery. The searches in July 2012 and May 2013 are at issue. The July 2012 search cannot be challenged because the defendants were able to inspect the property following their observations from publicly accessible areas, like the mailman's route leading up the residence. It sounds like the police searched the property after viewing something suspicious from a publicly-accessible area, some kind of fire or safety hazard. As the Court notes, "officers need not shield their eyes when passing by the home on public thoroughfares."

Craig's other claim, however, is more complex, but he still loses. That search, on May 1, 2013, saw the Fire Safety Inspector and Fire Chief enter the property without as warrant and cut the padlock on the gate to access the Griffins' backyard. The district court granted these defendants qualified immunity on the theory that they acted in an objectively reasonable manner, and the Second Circuit (Carney, Sullivan and Lee) agrees, reasoning that they suspected a fire or safety hazard. The Court says this:

Upon their arrival, the defendants found the Griffins’ property in a “hazardous” and “threatening” condition.  Klugewicz [the Fire Safety Inspector] noticed a “strong smell of gas” emanating from the property, and the defendants also observed a worn extension cord on the porch.  In addition, the property’s yard was “completely overgrown,” the residence’s windows “could not be seen as they were blocked with extreme dirt and packed with clothes from inside the house,” and the premises were “so cluttered with motor vehicle parts, wires, debris, and propane [tanks] that it was a fire hazard.” The defendants accordingly determined that it was necessary to shut off the electrical service to the property and to immediately investigate the source of the smell.

Disability-related expulsion from son's basketball game does not violate Americans with Disabilities Act

This case was brought under the Americans with Disabilities Act. The plaintiff is the father of a high school basketball player who was expelled from an out-of-state athletic tournament, which prompted the basketball team, as a well as a team from a private league, to sever their relationships with the father and son, leaving the son without a team. The case was dismissed, and the Court of Appeals affirms, so the case is over.

The case is Lafayette v. Blueprint Basketball, a summary order issued on October 15. Here is what happened, according to the father: in 2018, the father suffered a traumatic brain injury while playing basketball; that injury has affected his emotions and limits his ability to interact with others. A year later, his son joined a private basketball club.When dad attended his son's basketball game, he was expelled following a dispute with "a game official," or referee. Dad sent an angry email that he claims was an instance of "impulsive symptomatic behavior." The son was next kicked off the team and the basketball director issued a no-trespass order against dad for the team practices. The son was also "not welcome" to join another team due to this dispute with Blueprint Basketball. The basketball coaches had "heavy concerns" about dad.

The ADA claim is dismissed. The Court of Appeals (Chin, Calabresi and Lee) holds that the Complaint asserts only that plaintiff and his son were barred due to plaintiff's disruptive behavior. While the disability might explain the father's outburst which resulted in the expulsion, the Second Circuit holds that such "misconduct is a legitimate and nondiscriminatory reason for terminating [the relationship], even when such misconduct is related to a disability."

The Court of Appeals had previously applied such reasoning to an employment case, McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012), a case that I handled. The idea is that even the expulsion from work (or an athletic event) stems from disability-related behavior, that does not give rise to an ADA violation, as some workplace behavior is too intolerable for management to accept even if the ADA prohibits disability discrimination. That rule is so rock-solid these days that Lafayette's case does not even proceed beyond the Rule 12 motion-to-dismiss stage, and he is unable to generate discovery to further support his claim.

 

The "mere inconvenience" exception to the Second Amendment

Gun litigation in the Second Circuit is now in full swing. Over the last few weeks, the Court has published several rulings largely affirming New York's gun control laws. In this case, the Court rules that provisions of New York's Concealed Carry Improvement Act do not violate the Second Amendment. These provisions include rules that require background checks on people who want to buy ammunition, among other things.

The case is New York State Firearms Association v. James, issued on October 15. Under the Second Amendment caselaw that has developed ever since the Supreme Court held in 2008, the Heller ruling, that the Second Amendment provides for the right of individual gun ownership, not every gun regulation will be stricken as unconstitutional, and no constitutional provision provides for absolute rights without an exceptions.

With that in mind, the Second Circuit (Bianco, Park and Nardini) notes as follows:

A law regulating the means of acquiring firearms and ammunition does not meaningfully constrain the right to possess arms unless it “is so restrictive that it threatens a citizen’s right to acquire firearms [and ammunition].” Mere inconveniences do not constitute such a threat. Thus, we have made clear that “gun buyers have no right to have a gun store in a particular location, nor a right to travel no more than short distances to the most convenient gun store that provides what they  deem  a  satisfactory  retail experience.” In other words, “the Second Amendment does not elevate convenience and preference over all other considerations, nor does it guarantee a certain type of retail experience.”

Let's call this the "mere inconvenience" exception to the Second Amendment. The Court adds, "consequences that are part and parcel of ordinary regulatory measures—such as reasonable processing times and the hassle of filling out paperwork—generally will not meaningfully impair one’s ability to acquire arms. Indeed, because the Supreme Court has recognized that 'laws imposing conditions and qualifications on the commercial sale of arms' are 'presumptively lawful regulatory measures,' the modest administrative burdens that naturally follow will not ordinarily be sufficient to overcome that presumption." We can call that the "hassle" exception to the Second Amendment.

With constitutional standards like this, you can see where this case is going. The mandatory background check on people who want to buy ammunition, such as bullets, is legal. So is the small fee to process such background checks. A brief delay in acquiring the gun is not unconstitutional, and neither is the  $2.50 fee to pay for background check.  

Note the three judges on this case were all appointed by the current President. Judge Bianco writes the majority opinion, as he did in the other recent Second Amendment cases. A coincidence, to be sure, as the judges are chosen at random. Many judges are known for their jurisprudence in one area. At this rate, Judge Bianco is now the Second Amendment authority at the Court of Appeals.

 

 

Court upholds $2+ million damages award in sexual harassment case

The Court of Appeals has sustained a largeverdict on behalf of a woman who prevailed at trial on her sex discrimination claim, holding that the damages award in the amount of $2 million is not excessive. This is among the few cases that hold that the plaintiff in such a case is entitled to over $1 million for pain and suffering.

The case is Pizarro v. Quezada, a summary order issued on October 9. Over the course of nine years, plaintiff was repeatedly sexually harassed. Her boss groped her three to four times perm month, told sexually explicit stories in her presence, and once masturbated in front of her. He also tried to rape her at work; another woman came to plaintiff's rescue, interrupting the attempted rape. 

The jury awarded plaintiff $1.725 in compensatory damages. That is not excessive under federal law ("shocks the conscience" test) and state law ("deviates materially" from similar cases). Since Title VII has a $300,000 cap and state law has no cap, the award is allocated under state law. 

The Court of Appeals (Chin, Nardini and Kahn) views this as a sexual assault case, noting that while her jury award "outstrips awards in many other cases involving workplace sexual harassment, even cases involving physical touching, . . . Pizarro’s testimony regarding Quezada’s attempt to forcibly rape her, which we must assume the jury credited in reaching its verdict, renders the jury’s award more comparable to cases directly involving sexual assault claims, which have tended to result in higher awards." Non-employment cases, i.e., cases involving negligence and actions against the police, awarding seven figures in damages are in line with this case. 

While plaintiff did not put on medical evidence to support her damages claim, that does not justify reducing the award. "True, corroborating medical or expert evidence of a plaintiff’s emotional distress is often introduced to substantiate a plaintiff’s account of her own distress, and district courts often point to the presence of such evidence to shore up the reasonableness of a jury award or a court’s own recommended award. But corroborating expert testimony or medical evidence of a plaintiff’s
distress is not required to sustain an award of emotional distress damages." We trust the jury on issues like this, and juries do not always need to hear from a medical professional on the value of the plaintiff's case. as "Pizarro submitted evidence that she attempted suicide, received psychiatric treatment for depression, suffered from PTSD, and had recurring nightmares . . . , we cannot say that the jury's $1.725 million compensatory damages award was excessive."

As for the punitive damages, they do not shock the conscience, the federal standard. Not only was the workplace sexual harassment "highly reprehensible," but the punitive damages are only 57% of the compensatory damages; while punitives that exceed the compensatory damages may be a problem, that is not a problem here. As the punitive damages are comparable to those awarded in other cases involving sexual violence -- even if they do not involve workplace harassment -- the award stands.

Inmate's gender dysphoria claim fails under qualified immunity

The Second Circuit has held that an inmate cannot win her lawsuit claiming the prison's failure to provide her with treatment for gender dysphoria and hormone therapy as well as a vaginoplasty violates the Constitution. The rationale is that the state of law was not clearly-established at the time of these alleged constitutional violations, entitling the defendants to qualified immunity.

The case is Clark v. Valletta, issued on October 6, nearly two years after oral argument. The reason for the delay is that this case is complex, and the majority opinion is met with a lengthy dissenting opinion in which the judge views the law differently and claims the majority has not properly applied the qualified immunity analysis.

Plaintiff is a transgender female who is, frankly, not the most sympathetic plaintiff, as she landed in jail after killing her ex-wife. The details of that crime are set forth in the majority ruling. More to the point, plaintiff wants treatment for her gender-related issues, but the jail said no. Hence, this lawsuit.

You cannot win a damages claim under the Constitution if your lawsuit does not assert the violation of a clearly-established right. That means you cannot just point to a constitutional provision and claim it's violation entitles you to a judgment in your favor. You have to identify prior case law from the Supreme Court or the Second Circuit that is sufficiently identical to yours, such that the defendants were on notice that they were violating your rights. The problem for plaintiff is that the issues raised in this case, relating to transgender medical treatment, are too recent and have not yet yielded the favorable court rulings that would repel a motion to dismiss based on qualified immunity.

While the district court allowed this case to proceed, rejecting the qualified immunity defense, the Court of Appeals (Sullivan, Park and Robinson [partial dissent]) says the lower court did not particularize that inquiry and instead "conduct[ed] its qualified immunity analysis at too high a level of generality." The district court defined the relevant right as "the right to be free from deliberate indifferent to serious medical needs." There is such a right, but that is too general a statement, the Second Circuit says. The correct formulation is whether that right extends to the particular circumstances of this case. It does not, at least not yet. That dooms the case. As "neither the Supreme Court nor this Court has recognized, much less clearly established, any constitutional right to specific gender-dysphoria treatments," qualified immunity attaches and the case is over.

Plaintiff cannot win discriminatory demotion claim

A white New York City employee who claims she was demoted because of her race cannot prevail at trial on her discrimination claim, the Court of Appeals holds.

The case is Chislett v. New York City Department of Education, issued on September 26. You can read about plaintiff's meritorious racial harassment claim at this link. While that claim will proceed to trial, plaintiff's demotion claim will not. The Department said plaintiff was stripped of her supervisory responsibilities because her team did not think she was an effective leader and she had created chaos and a negative work environment. In light of this defense, to win the case, plaintiff has to show either that the articulated justification for her demotion was knowingly false or issued in bad faith or that some other evidence supports a finding of discriminatory intent. 

Although the workplace was permeated with anti-white bias, that does not support her disparate treatment claim. I am sure her argument was that the jury may view the evidence holistically and find that the hostile work environment spilled over into the decision to demote the plaintiff. But the Court (Leval, Nardini and Bianco) examines the demotion claim separately from the harassment claim, holding that since plaintiff was unable to refute her supervisor's testimony that she had received numerous negative evaluations about her supervisory practices. Bad evaluations can be the death knell of a discrimination claim. Unless the plaintiff can show the supervisor was motivated by racial discrimination in drafting them, or that the supervisor himself made racist comments that rendered the negative evaluations unreliable, the courts will defer to management's view on how the plaintiff performed her duties. 

Interesting footnote on the disparate treatment claim. In summarizing the plaintiff's prima facie burden under McDonnell Douglas, the Court notes the plaintiff has to present "some minimal evidence suggesting an inference that the employer acted with discriminatory motivation." That language has been kicking around for years, and the Court pulls it from Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). (If the plaintiff makes out a prima facie case, the employer has to advance a natural reason for the adverse personnel action and, to win, the plaintiff must show the real reason was discrimination). But the Court also says that "in McDonnell Douglas itself, which was a case involving allegations of racially discriminatory denial of employment, for the fourth factor, the Supreme Court specified that 'the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.'” 

However, the Second Circuit goes on to say that "the Supreme Court more recently ceased to rely on this requirement in Title VII cases, apparently recognizing that it had no application to cases involving other adverse employment actions and furthermore that this factor was not useful." For this proposition, the Circuit cites Ames v. Ohio Dep’t Youth Servs., 605 U.S. 303 (2025) (explaining that a plaintiff may establish a prima facie case “simply by presenting evidence ‘that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination’”). Does this mean that it no longer matters if the employer kept the position open and looked for other candidates? Or is that evidence still enough to prove a prima facie case but that plaintiffs have other ways to prove it, too? Can the latter formulation be the case if the Second Circuit has long said the prima facie case may be proven through other evidence of discriminatory motivation? My guess is that the "position remained open" option remains viable under the prima facie framework, as the footnote further notes that "the fourth element set forth in McDonnell Douglas is a flexible one that can be satisfied differently in differing factual scenarios."

Plaintiff may litigate anti-white bias in the workplace influenced by the City's diversity training

The Court of Appeals has held that a white woman who was subjected to racial comments arising from her public employer's diversity training may sue the New York City Department of Education for a hostile work environment. This is among the few cases where a white plaintiff has enough evidence to proceed on such a claim.

The case is Chislett v. New York City Department of Education, decided on September 25. Plaintiff, an educator with the Department of Education, attended mandatory implicit bias training, which focused on white supremacy and related topics. The Court says a rational jury may find that "racist comments were expressed during bias trainings" and that this bias spilled into everyday workplace interactions as "employees expressed terminology from the trainings at [plaintiff]." Viewing the record in plaintiff's favor (a necessary process in reviewing the propriety of summary judgment), the Court notes that, following this training, coworkers criticized her by stating, i.e., she was making "race-based judgments," could "not be trusted," benefited from white privilege, and that she was racist and "white and fragile." 

The district court rejected plaintiff's racial harassment claim, but the Court of Appeals finds she has a case. The Second Circuit (Leval, Nardini and Bianco) holds the evidence supports a finding that the Department has a custom or policy of racial harassment against white employees, sufficient to support a Monell claim, because the racially hostile work environment may have been "the product of a municipal policy." This is a unique holding, as "policy and practice" claims often fail under the stringent legal standards articulated by the Supreme Court. The pattern of racist comments that followed the training permits the finding that this took place because of the training sessions. While some of the anti-white comments were directed toward other employees, the Court notes that "discriminatory conduct not directly targeted at or spoken to an individual but purposely taking place in her presence can nevertheless transform her work environment into a hostile or abusive one." 

While the conduct of implicit bias trainings is not per se racist, the Court says, "What matters here is the way the trainings were conducted," and employers risk liability "when employment trainings discuss any race with a constant drumbeat of essentialist, deterministic and negative language about a particular race." This is the first time the Second Circuit has said this, borrowing language from a district court ruling in Pennsylvania. When the Court of Appeals relies on an out-of-Circuit district court ruling, you know the Court means business about this issue. What hurts the City in this case was its failure to remedy the problem when plaintiff lodged a complaint about the offensive workplace statements, often dismissing her concerns outright, and the "tolerant awareness" of supervisors, suggesting they were "acquiescing in such abuse."

While the city argued that "many of the identified statements should not form the basis of a hostile work environment claim because they occurred in the context of discussions about combating discrimination," the Court says "the fact that the purpose of the sessions was to combat race discrimination does not excuse the alleged presence of race discrimination in the conduct of the sessions." At the same time, the Court says "we do not suggest that calling someone racist by itself constitutes racial discrimination or forms the basis of a hostile work environment claim."

Italian-American organization cannot sue New Haven to retain Columbus statue owned by the City

The City of New Haven removed a statue of Christopher Columbus from Wooster Square Park, a prominent public space. The plaintiff is an Italian-American organization that wants the statue to return to the public square. They sue the City under Section 1983, asserting the statue was removed in violation of due process. The plaintiff loses.

The case is Italian-American Defense League v. City of New Haven, a summary order issued on September 25. While Columbus was long viewed as a hero for "discovering America" in 1492, historians over the years have raised serious questions about his ill-treatment of the Native Americans who got there first. The removal of these statues, and renaming Columbas Day as Indigenous Peoples Day, is the product of the revised focus on Columbus. That's the backdrop for this case.

Plaintiff gets a minor victory along the way. The Second Circuit (Menashi, Cabranes and Livingston) says the organization has associational standing to bring this lawsuit, as it represents the interests of the individuals who object to the statue's removal. The organization "represented that several of its members live near Wooster Square Park, the former site of the Christopher Columbus statue. The complaint described the neighborhood around Wooster Square Park as 'home to many Italian-Americans who have chosen to live there so as to share their lives with others of similar[] heritage.'" The Court adds that "these residents 'place a unique value on living in the vicinity because it is known to many as 'Little Italy' and hosts 'annual festivals and events celebrating Italian-American heritage.' These allegations gave rise to the reasonable inference that many of the residents derived aesthetic and recreational benefits from regularly viewing a statue that 'was intended to signal the contributions Italian-Americans had made to American culture and society.'” These facts give the organization standing to bring this case. 

But plaintiff loses the case on the merits. That's because, to prevail under the Due Process Clause, you have to show the government denied you a liberty or property interest without due process, usually in the form of a fair hearing or a chance to be heard.

There is no such liberty or property interest in this case. The Supreme Court has given "liberty" and "property" precise definitions. Here, the Court says, while "the plaintiffs alleged a 'property interest in the historical preservation of Wooster Square Park, its buildings, structures and features,'" New Haven’s Charter gives the City the power to manage, regulate and control all City property,” and “[t]he Columbus statue is property of the City of New Haven.” Since the organization does not own the statute, it lacks any property interest in its continued placement in the park. In other words, "The plaintiffs do not have a property interest in a statue that belongs to the City. Nor do the plaintiffs have a 'liberty' interest in the statue remaining in the neighborhood."

New trial for inmate after jury ruled against him

The best way to get a new trial if the jury rules against you is to argue that the trial court got the jury charge wrong. A good deal of the trial court's decisionmaking at trial is difficult to challenge on appeal, as the judge had discretion to admit or deny certain evidence. But the judge has no authority to instruct the jury improperly. We learn that lesson in this case.

The case is Sloley v. Vanbremer, a summary order issued on September 26. This case alleges that correction officers subjected plaintiff to a body cavity search in violation of the Constitution. The trial court initially dismissed the case on summary judgment, but the Second Circuit reinstated case on the basis that the jury could find the officers conducted the highly-intrusive cavity search without reasonable suspicion. The citation for that ruling is 945 F.3d 30 (2d Cir. 2019).

While other searches, such as one that does not involve cavity searches, do not carry the reasonable suspicion standard, this heightened standard applies to cavity searches because they are more intrusive. Under the reasonable suspicion standard, the officer needs "reason to believe, based on specific and articulable facts, taken together with rational inferences from those facts, that an arrestee is secreting contraband inside a body cavity." That language derives from the earlier appeal in this case.

Since plaintiff won the first appeal, the case went to trial. The jury ruled against plaintiff. But the case is not over! When the trial court charged the jury, it said that "the relevant question is do the circumstances of plaintiff's arrest support a reasonable suspicion that he was hiding contraband in or on his person?" The "in or on" language is the problem here. The "on" component of the jury charge allows the jury to rule against plaintiff if it found the officer had reasonable suspicion to believe that plaintiff had drugs on his person rather than in his body cavity. If the jury interpreted the charge that way, then it could have determined that the cavity search was OK even if the officer only thought that plaintiff had drugs on his person instead of inside a body cavity. 

Since the jury charge was incorrect, plaintiff gets a new trial, as the plaintiff may have lost the case under an incorrect legal principle. The defendants argued that, notwithstanding this charge, the charge overall was OK because the jury elsewhere in the charge gave the jury a correct statement of the law. But the Court of Appeals (Merriam, Parker and Newman) notes that the Second Circuit has long held that a bad charge is not cured by the correct standard elsewhere in the charge. And, while the verdict sheet correctly stated the legal principle guiding this case, that does not cure the error in the jury charge, either, since language in the charge and not the verdict sheet controls this inquiry. As the Second Circuit states, "the jury can only read the verdict form in the light of the explicit instructions the court has given."

Sexual harassment claim is reinstated on appeal

The Court of Appeals has reinstated a hostile work environment claim asserted by a small-town police officer who claims her superior touched and groped her in a manner that violated Title VII and state law. 

The case is Arnold v. Town of Camillus, a summary order issued on September 23. I briefed and argued the appeal. A.J. Bosman, Esq., handled the case in the district court and assisted on appeal. 

On the summary judgment motion, the Northern District of New York held that plaintiff did not establish that the hostile work environment was "severe or pervasive" because it did not happen frequently enough. But as the Second Circuit has held over the years, it is enough for plaintiffs to allege the harassment took place on a regular basis, even if the plaintiff does not provide details about time and place. That is what happened here, and that claim is revived on appeal. The Court summarizes the evidence as follows:

 

For example, she offered testimony that “throughout the course of [her] career at the Camillus Police Department,” Defendant James Nightingale, a more senior police officer, engaged over an extended period in repeated “unwelcome and offensive touching of [her] body, including [her] arms, shoulders, and back” and, on one occasion, “above [her] groin,” even though it was “unnecessary” to perform his job duties. In addition, male officers testified that they had “never had [Nightingale] touch [them] in that way nor seen him touch other men in that fashion.” Male colleagues also observed Nightingale “repeatedly touch” Arnold, “stand directly over her while she was on the computer or sitting in a chair,” “plac[e] his hand on her back or shoulder,” and “touch[] her with his hands as he would walk by her.” Arnold also testified that Nightingale’s “conduct was frequent and noticeable enough that it became a running joke” within the police department, and that “the incidents began long before” she began documenting them in 2017.

While plaintiff did provide a summary of the harassment when she complained to the Police Chief about Nightingale in 2017, she did not list all the incidents. That omission, however, does not mean the jury cannot credit plaintiff's testimony about the other episodes. This may raise a credibility issue for trial, but it cannot be used against plaintiff on summary judgment if she details them in an affidavit in opposition to dismissal.

 

Plaintiff also asserted a disparate treatment claim, asserting that Nightingale did not sent her to enough training or allow her to instruct fellow officers, and that he did so because of her gender. The Court of Appeals affirmed summary judgment on this claim because plaintiff  could not show these personnel decisions were gender based. While the harasser was the same individual who assigned the training and instruction, and plaintiff heard him say that "women shouldn't be cops," the Court of Appeals said without significant discussion that this was not enough to prove the training and instruction denials were based on sex discrimination. The Court reasons, "The statement, offensive though it is, is not connected to any “workplace policy, practice, or decision” Nightingale made about Arnold’s training or instructional opportunities." For this principle, the Court cites Young v. United Parcel Serv., Inc., 575 U.S. 206, 213 (2015). 

 

It is unclear to me how Young supports this holding, In Young, the Supreme Court stated that "We have also made clear that a plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas." I guess the Second Circuit interprets this language to mean that, to support a finding that Nightingale denied plaintiff certain workplace benefits because of sex, he had to say "women shouldn't be cops" in the precise context of his decision to deny her training and instructional opportunities. I ask you this: would the jury require such a connection in order to find that Nightingale's comment means he denied plaintiff these benefits because of her sex? If the jury believes plaintiff's testimony that Nightingale thinks women should not be police officers, and it further finds that he prevented plaintiff from attending certain training sessions, would it be too much for the jury to say that sex discrimination motivated these personnel decisions?