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

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

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

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

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

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

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

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

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

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

 

Circuit declines to reconsider Trump sexual assault case

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

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

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

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

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

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

 

The unpleasant truth about attorneys' fees

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

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

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

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

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

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

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

Non-violent felons can be stripped of their firearms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

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

 

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

Court of Appeals sustains defense verdict in excessive force case

This case highlights the unpleasant realities when you lose your case at trial and take up an appeal. Most verdicts are affirmed. Some are reversed, that is true. But the standard of review on appeal gives the jury (or the trial judge following a bench trial) the benefit of the doubt. In this excessive force claim against the City of Mount Vernon, the plaintiff lost at trial and proceeded to the Second Circuit. The Court of Appeals affirms.

The case is Ketcham v. City of Mount Vernon, a summary order issued on May 27. This was a bench trial. Plaintiff alleged the police officers used excessive force against him. If true, that would violate the Constitution. The seminal case in this are is Graham v. Connor, 490 U.S. 386 (1989), which requires courts and juries to consider the following in assessing these cases: the severity of the crime at issue, whether the suspect posed an immediate threat to anyone's safety, and whether he was actively resisting arrest. The Fourth Amendment does not cite any of these factors; the Supreme Court came up with this balancing test to facilitate application of the Fourth Amendment.

This case last reached the Court of Appeals in 2021, when the Second Circuit reinstated plaintiff's case after the trial court dismissed it on summary judgment. The Court four years ago said the evidence did permit a verdict in plaintiff's favor, necessitating a trial. But just because you survive a summary judgment motion does not mean you will win the trial. In that ruling, the Court of Appeals noted that both sides had dramatically different interpretations of the evidence. This is why we have trials.

Excessive force claims are often fact-intensive. If the officer uses force, he will claim he had no choice because the suspect was dangerous or running away or the force was needed to protect the officers. Here, plaintiff says that while "he may have actively resisted arrest in the technical sense, such conduct was justified given that the officers never identified themselves as police officer, were driving an unmarked car, and heard Ketcham screaming for someone to call the police during the ensuing altercation" Under these circumstances, plaintiff says, a reasonable officer would not have used force against him.

This argument fails. The Court of Appeals (Wesley, Sullivan and Park) notes the officers had an arrest warrant, and they found a man (Ketcham) who resembled the wanted individual. The decision is not clear about this, but the officers may have been looking for someone else. The officers saw plaintiff walking on the sidewalk, so the plainclothed officers approached him, though plaintiff saw that one of them was wearing a badge or shield around his neck. Plaintiff adopted a "defensive posture" as the officers approached and would not identify himself, instead making "challenging" responses to the officer's inquiries. Plaintiff then resisted when the officers approached, twisting his torso, moving his head, and "screaming at the top of his lungs." It took the officers several minutes to place him into handcuffs. Then plaintiff placed his leg in the doorframe as the officers tried to get him into the police car. 

On this record, viewing the evidence most favorably to the officers (the standard of review on appeal from a verdict), the trial court did not improperly find in favor of the officers. The Court of Appeals issues a similar holding in finding the trial court properly rejected Ketcham's argument that the handcuffs were too tight. 

Sex discrimination case is reinstated

Here is a sex discrimination case that applies the general rules guiding motions to dismiss these cases. The Court of Appeals reinstates the lawsuit thanks to the plaintiff's allegations that two superiors told her that the decisionmaker will not hire women for a law enforcement position.

The case is Fay v. Barbera, a summary order issued on June 2. Plaintiff was a part-time officer with the Rockland County Sheriff's Department and wanted a promotion to a full-time patrol officer position. When plaintiff inquired about the promotion, two superiors with in the Sheriff's Department, one of who was married to the defendant Undersheriff Mary Barbera, said that Barbara does not appoint women to patrol officer positions and that plaintiff was "too pretty" for the job. When plaintiff asked Barbera what she had to do to be appointed, Barbera said she was under no obligation to interview plaintiff and that she selected a male candidate who, unlike plaintiff, had been inactive in the unit prior to his appointment as Deputy Sheriff.

This case was dismissed on a Rule 12 motion. The district court said that plaintiff did not plead a plausible sex discrimination claim, but the Court of Appeals (Lee, Merriam, and Kahn) reinstates the case, holding that we can in fact infer that Barbera was the decisionmaker for this position and that the adverse decision was based on sex discrimination because of what the two superiors had said (Barbara does not hire women for patrol officer positions and plaintiff was "too pretty" for the job) and then what Barbara said about appointing the less-qualifed male officer. 

Under Second Circuit precedent, including Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), the plaintiff does not have to plead a prima facie case of employment discrimination, only enough facts to suggest that discrimination was the motive. That is a low bar for plaintiffs. This is not the only case where the Court of Appeals has reversed a Rule 12 dismissal order on facts like this. It will not be the last. What this case tells us, at least as to the "admissions" from the two supervisors, is that the plaintiff can proceed to discovery on allegations that those close to the decisionmaker may be in a position to make comments that bind the employer in a discrimination case.

Supreme Court will not hear student speech case over t-shirt promoting only "two genders"

The Supreme Court has declined to take up an appeal involving student speech relating to the the culture wars of the Trump-era, relating to LGBTQ and gender identity. Strong dissents from Justices Thomas and Alito.

The case is L.M. v. Town of Middleborough, dated May 27. The middle school student in this case wore a shirt to school stating there are only two genders. The school made him change his clothing on the basis that the shirt was offensive to members of the LGBTQ population at the school and might disrupt the educational environment. Plaintiff argued this was viewpoint discrimination in violation of the First Amendment, as other students routinely expressed contrary opinions during school hours.

Normally, viewpoint discrimination is struck down in the federal courts., even in limited public forums. But the First Circuit said in this case that the seminal student speech precedent, Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969), does not recognize that viewpoint discrimination in the educational context violates the First Amendment. That ends the case. 

Tinker is a famous precedent, one of the high points of the Warren Court, which held that students were allowed to wear black armbands to protest the Vietnam War. I had a law school classmate who went to school in Des Moines  and he emphasized in one of our constitutional law classes that, in Iowa during the 1960's, protesting the war in this manner was socially unacceptable. He could not emphasize this point strongly enough. All hell probably broke loose when the students in Tinker wore those armbands. Anti-war activism may have been fashionable in New York City or San Francisco back then, but Iowa was not New York City or San Francisco. The decision in Tinker was written by Justice Fortas, one of the great defenders of civil liberties who eventually resigned from the Court over financial conflict-of-interest allegations. Those were the days when allegations like that could ruin your career in public office.

Justice Alito objects, arguing that language in Tinker does in fact hold that the First Amendment does not tolerate viewpoint discrimination in the grade school setting, and that the two-part test that the First Circuit formulated in resolving cases like this -- which takes into account whether the speech would demean "characteristics of personal identity" and potentially "poison the educational atmosphere" -- finds no place in the Supreme Court's jurisprudence. Alito writes that the Court should take up this case, for these reasons:

First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech.  Tinker itself made that clear. See 393 U.S. at 511 (“Clearly, the prohibition of expression of one particular opinion . . . is not constitutionally permissible”). Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates. By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection.

Second, we  should also grant review to determine whether the First Circuit properly understood the rule adopted in Tinker regarding the suppression of student speech on the ground that it presents a risk of material disruption. We have described this standard as “demanding.” But the First Circuit fashioned a rule that is anything but. The lower courts are divided on how to apply Tinker’s “material disruption” standard in a context like this one,1 and the decision below underscores the pressing need for clarification.

Justice Thomas signs onto Alito's dissent from the denial of certiorari, But Thomas also reminds the reader that he has previously said that Tinker was wrongfully decided and the First Amendment does not recognize that grade-school students have any free speech rights at all. So far, no one else on the Supreme Court has agreed with this proposition.
 

Racial discrimination claim is revived on appeal

The Court of Appeals has reinstated a racial discrimination claim, finding the complaint asserts a plausible claim that the Girl Scouts of Suffolk County terminated a Black man because of his race. This ruling provides useful guidance on interpreting the New York State Human Rights Law, amended in 2019 to lower the plaintiff's burden of proof.

The case is Flanagan v. Girl Scouts of Suffolk County, a summary order issued on May 27. I briefed and argued the appeal. Plaintiff Grant was the organization's Director of Technology. When the new President and CEO, Mastrota, came aboard in April 2020, before she had time to evaluate his performance, she said Grant "would be one of the first people fired," as he was "unqualified, overpaid and only obtained his position because his mother [] was the previous CEO." Mastrota also reduced staff salaries, though Grant's was reduced by 20%, claiming, without much basis, that he was making "crazy money" for his "level of activity." A white staffer's salary was only reduced by 10%. When two colleagues objected to Grant's salary reduction, these colleagues' salaries were reduced even further. In addition, Mastrota demoted Grant, reasoning that he was no longer managing staff (as Mastrota had taken away his subordinates) but a white colleague who also had no staff maintained her title and pay.

The district court dismissed the racial discrimination claim, but the Court of Appeals (Walker, Bianco and Wesley) says these allegations are enough to survive the motion to dismiss under Rule 12. Under Second Circuit standards, the discrimination plaintiff need only offer "minimal support for the proposition that the employer was motivated by discriminatory intent." The plaintiff does not have plead a prima facie case.

The case is reinstated because Mastrota announced Grant's termination without knowing enough about his performance, claiming he was not busy enough. The Court of Appeals cites Stratton v. N.Y.C. Dept. of the Aging, 132 F.3d 869 (2d Cir. 1997), for the proposition that "actions taken by an employer that disadvantage and employee for no logical reason constitute strong evidence of an intent to discriminate." I have used that language in other cases, but it lay dormant in the Second Circuit for many years. The Court revives that language in this case. The Court also finds the complaint asserts disparate treatment, as Grant was treated worse that comparable white employees, particularly regarding the reduction in pay and title. 

Grant also argued his termination was motivated by race because, in terminating him, Mastrota told staff to "be careful" with Grant because he "could get angry and destroy [Girl Scouts] property." Plaintiff argued these were racial code words reflecting stereotypes about the "angry black man" who "slacks on the job." In a footnote, the Court of Appeals does not resolve whether these are code words sufficient to support a discrimination claim. One of these days, the Court will address this issue, as this is not the first case I've seen in the Second Circuit where the plaintiff cites similar code words in support of his claim.

While defendants argued that various nondiscriminatory reasons justified the adverse treatment, the Court of Appeals holds that "even under the more stringent 'but-for' standard, a defendant cannot avoid liability just by citing some other factor that contributed to the challenged employment decision. So long as the plaintiff's race was one but-for cause of that decision, that is enough to trigger the law." The case for that proposition is Radwan v. Manuel, 55 F.4th 101 (2d Cir. 2022). In addition, at the motion to dismiss stage, the Court of Appeals does not focus on whether the employer has articulated a neutral reason for termination. The case for that principle is Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023).

The other plaintiffs also asserted retaliation claims, either because they objected to Grant's treatment or they blew the whistle on unsavory practices at the Girl Scouts, triggering their state law whistleblower claims. Those claims do not survive the motion to dismiss, the Court of Appeals holds, because in response to the plaintiffs' whistleblower letter, the Girl Scouts conducted an investigation that led to Mastrota's departure, and the organization told plaintiffs they would not face retaliation. While plaintiffs were ultimately terminated, that was too long after they sent the letter, not "close in time" as required under Second Circuit standards. While plaintiffs were fired after settlement negotiations failed (they were looking for a severance), the Court says the complaint admits they were let go "because they decided not to discuss settlement."

Some interesting insights into the amended New York Human Rights Law, amended a few years ago liberalize the statute. The Court of Appeals says the state law now aligns with the New York City Human Rights Law, amended 20 years ago for the same purpose. The revised state law was not clear about this statutory interpretation, but recent cases now hold there is no daylight between the two laws. Key precedents on this point are Qorrolli v. Metro. Dental Assocs., 124 F.4th 115 (2d Cir. 2024), and Syeed v. Bloomberg L.P., 41 N.Y.3d 446 (2024).

 

Discrimination claim against New York court system fails

This case alleges that the New York court system discriminates on the basis of national origin because court interpreters earn less money than other court employees. The Court of Appeals finds the plaintiffs cannot win their case.

The case is Bergnes v. Zayas, a summary order issued on May 23. This case was dismissed under Rule 12. As the Court of Appeals puts it, plaintiffs "presented statistical evidence showing that court interpreters are more highly qualified but receive less pay than court reporters who are majority white, English speaking employees. Second, they present anecdotal allegations of hostility faced by court reporters." This is not enough to state an equal protection claim, the Court of Appeals (Parker, Park and Vilardo [D.J.]) holds.

The Court hold that if you want to plead an equal protection claim based on statistics alone, the numbers must be statistically significant in the mathematical sense and "must also be of a level that makes other plausible non-discriminatory explanations very unlikely." That strict language draws from Burgis v. New York City Dept. of Sanitation, 798 F.3d 63 (2d Cir. 2015). Plaintiffs lose the case for these reasons:

First, plaintiffs "provide no concrete statistics about courtroom personnel broken down by national origin, ethnicity, race, ancestry, or otherwise. Instead, they allege only that the majority of court interpreters are persons of a non-Anglo national origin while court reporters are mainly people who are not foreign-born." That claim is too vague and conclusory to state an equal protection claim.

Second, the anecdotal allegations are not enough to bring this case to discovery. The anecdotes do not suggest the court system had a policy or practice of discrimination in this context. Nor do plaintiffs connect the anecdotes to any policy or custom concerning how defendants pay their court interpreters. 

What do we learn from this case? Statistical evidence, for purposes of proving intentional discrimination, is hard to come by. Anecdotes often will not prove a policy or practice against a municipalities.

Religious wedding photographer may object to same-sex weddings

A judge in the Western District of New York has held the religious freedom provision of the U.S. Constitution prevents the State of New York from requiring a wedding photographer to work same-sex weddings. This ruling applies a recent U.S. Supreme Court ruling that held the Constitution allows a website designer to object, on religious grounds, to working for a same-sex couple.

The case is Carpenter v. James, 2022 WL 1465550, issued on May 22. Plaintiff objects to same-sex weddings on religious grounds. As such, she will not work such weddings. That stance conflicted with New York's public accommodation laws, which protect gay couples from discrimination. Initially, plaintiff lost her case in the WDNY, but then the Supreme Court issued 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), holding for the first time that the religious freedom principles under the U.S. Constitution allowed a website designer to turn down business from a same-sex couple. That ruling revives Carpenter's case.

Judge Geraci opens his ruling in Carpenter's case with language suggesting that, absent the Supreme Court's ruling, plaintiff would not win this preliminary injunction:

On December 13, 2021, this Court held that the Constitution does not prevent New York State from ensuring that all consumers in the marketplace, without regard to sexual orientation, have “equal access to publicly available goods and services,” including custom goods and services. Emilee Carpenter, LLC v. James, 575 F. Supp. 3d 353, 373 (W.D.N.Y. 2021). This holding flowed from the basic principles on which our nation was founded: all people are “entitled to be treated in a manner consistent with their inherent equality, dignity, and worth.”  Id. at 361 (internal quotation marks and brackets omitted). As a result, the Court dismissed the complaint filed by Plaintiff Emilee Carpenter and the entity through which she operates her for-profit wedding-photography business, “Emilee Carpenter, LLC.”

That ruling is now obsolete, Judge Geraci holds, because the reasoning in 303 Creative applies to this case. While the judge notes "the fundamental,praiseworthy purpose of public accommodation laws like New York's," which "ensure that 'individuals in historically disadvantaged or disfavored classes desiring to make use of public accommodations' recieve 'what the old common law promised to any member of the public meal at the inn -- namely, that accepting the usual terms of service, they will not be turned away merely on the proprietor's exercise of personal preference," the Supreme Court has chipped away at that principle, though it has in the past deemed that interest compelling in the context of race and sex discrimination.

Any ruling against Carpenter would compel her to engage in expressive activity with which she disagrees. Compelled speech violates the Constitution, the court now writes. When it took up this case last year, the Court of Appeals held that plaintiff's photography constituted "presumptively expressive" activity, not just commercial activity. The record shows that Carpenter's subjective intention with her photography is to express herself. She operates her business consistent with "her own artistic and moral judgment" in realizing her "own creative vision"and "artistic and religious beliefs." She is not just a photographer but an artist. Artists have free speech rights, which means the government cannot force them to engage in expressive activity they disagree with.

"Younger male" comment will not support a sex discrimination claim under Section 1983

Here's a case that reminds us that even "direct evidence" of discrimination does not necessarily get you a trial for employment discrimination. The Court of Appeals holds that a woman who was denied an employment opportunity after the City Manager told her the City wanted a man for the position cannot proceed to trial because there is still no real evidence of discrimination.

The case is Brown v. Donat, a summary order issued on May 19. Brown worked for the City of Newburgh and occasionally served as interim Recreation Director. When the City was looking for permanently fill that position, plaintiff expressed interest, but the City decided that you needed a college degree for the position. Plaintiff does not have a college degree. But plaintiff still thought she qualified for the position because she had held the position on an interim basis in the past. And the City Manager also told plaintiff that the City Council wanted a "a younger male" for the position. The district court denied the City Manager's motion for summary judgment on the Section 1983 gender discrimination claim, but the Court of Appeals rejects that decision on qualified immunity grounds, holding that plaintiff cannot prevail at trial.

Plaintiff loses on appeal for the following reasons: 

(1) Plaintiff was not qualified for the position because she did not have a college degree. While plaintiff had successfully performed the duties of the position in the past, that is not enough to prevail against the City Manager, as the latter's authority to hire and promote was subject to applicable job requirements and civil service rules. There is no evidence the City's Civil Service Commission imposed the college degree requirement or refused to alter it for discriminatory reasons.The City Manager played no role in setting the qualifications.

(2) While direct evidence of discriminatory intent may defeat a summary judgment motion, the City Manager's "younger male" comment is not enough. The Court of Appeals (Bianco, Park and Nardini) holds that since the City Manager played no role in setting the job requirements, "and conveyed his belief regarding the City Council's intent without providing a basis for that conclusion," this comment will not support a verdict in plaintiff's favor.

Supreme Court reminds us that police-shooting cases must be reviewed holistically

 

The Supreme Court has issued a plaintiff-friendly ruling on the excessive use of police force, holding that courts have to consider the totality of the circumstances and not a narrow time window in determining whether a police officer had an objective basis to shoot someone in the course of a traffic stop or arrest.

The case is Barnes v. Felix, issued on May 15. The ruling is 9-0, but four Justices issue a concurrence that reminds us how difficult it can be for officers who make traffic stops.

Here is the sequence of events. Officer Felix pulled over Barnes because he had outstanding toll violations. Barnes rummage around the car's interior for his papers, and the officer smelled marijuana in the car. At Felix's direction, Barnes opened the trunk from his seat, and then the officer ordered Barnes to exit the car. At this point, Barnes started up the car again and began to drive. As the car began to move forward, Felix jumped onto the doorsill and fired his gun at Barnes, killing him. On these facts, the Fifth Circuit held, under its "moment of threat" doctrine guiding excessive force claims, Barnes' estate could not sue Felix because, at the precise moment that Felix pulled the trigger, objectively speaking, Felix could have reasonably believed his life was in danger. 

The Supreme Court reverses, revising its precedents governing the excessive use of police force. In Graham v. Connor, 490 U.S. 386 (1985), the Supreme Court held that courts must evaluate these cases under the "totality of the circumstances" test in determining if the use of force was objectively reasonable under the Fourth Amendment. The problem with the Fifth Circuit's "moment of threat" analysis is that it views the interaction from a narrow perspective -- the moments leading up to the use of force -- without considering what took place prior to that. The moment of threat test, especially here, where the lower courts focused on the few seconds prior to the police shooting, conflicts with the totality of the evidence test, the Supreme Court holds.

The case returns to the Fifth Circuit to re-evaluate the case under the totality of the circumstances. Justice Kagan writes, 

In looking at only the two seconds before the shot, they excluded from view any actions of the officer that allegedly created the danger necessitating deadly force. So, to use the obvious example, the courts below did not address the relevance, if any, of Felix stepping onto the doorsill of Barnes’s car. And because they never considered that issue, it was not the basis of the petition for certiorari. The question presented to us was one of timing alone: whether to look only at the encounter’s final two seconds, or also to consider earlier events serving to put those seconds in context. 

What it all means is that, under the Fifth Circuit's narrow focus, that court may have had a basis to rule in the officer's favor, as Barnes was trying to drive away when Felix was in the doorsill; shooting Barnes may have been necessary to protect Felix. But we cannot look at the case so narrowly. It may be that, in the minute or so prior to the shooting, Felix knew he was not facing any risk of serious harm that would justify the shooting. The lower court may instead find, on remand, that Felix knew, prior to stepping into the doorsill, there was no such risk since Barnes was only allegedly guilty of a toll violation and had not done anything prior to driving away to suggest that Felix was at risk of serious harm. In other words, maybe Felix created a dangerous situation by stepping into the doorsill, and creation of such a situation would tilt the case in Barnes' favor.

Appellate Division says State HRL aligns with City HRL

In 2019, the State Legislature amended the New York State Human Rights Law to make it less burdensome for employment discrimination plaintiffs to win their cases. Prior to that, the state HRL was usually an afterthought and an add-on claim to the federal causes of action that most plaintiffs cited in federal court. The HRL is now stronger than federal law in many ways. But in portions of the amended statute, the language was not clear about the plaintiff's evidentiary burden. This ruling by the Appellate Division Second Department provides some guidance, holding that the state law aligns with the New York City Human Rights Law, long recognized as one of the most liberal antidiscrimination laws in the country.

The case is Wright v. White Plains Hosp. Medical-Center, issued on April 23. Plaintiff alleged she was fired because of her pregnancy. Supreme Court granted defendant's motion for summary judgment. Prior to 2019, the Second Department notes, "The standards for establishing unlawful discrimination under the NYSHRL previously were the same as those governing title VII cases." When the HRL was amended, however, the State Legislature advanced this statutory construction: the HRL should “be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed.” That's good language for plaintiffs. What does it mean?

The Appellate Division says this language means "the NYSHRL now aligns with the standards of the New York City Human Rights Law." In addition, "Under the NYCHRL, unlawful discrimination must play 'no role' in an employment decision. Thus, a defendant’s motion for summary judgment must be analyzed under both the familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and under the newer mixed-motive framework, which imposes a lesser burden on a plaintiff opposing such a motion." 

Also, “A defendant must make ‘a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in their challenged actions.’ A plaintiff may defeat summary judgment by coming forward either with evidence that the defendant’s stated reasons were a pretext for discrimination or with evidence that discrimination was one of the motivating factors for the defendant’s conduct.”

This language looks to be more favorable for employment discrimination plaintiffs than the prior state HRL. So that's good for plaintiffs. But it does not help this plaintiff. The Second Department, which uses this case as a vehicle to explain the contours of the amended law, finds (with limited factual analysis) that plaintiff still cannot win the case because "the plaintiff offered nothing but speculation that the decision to terminate her employment was motivated, even in part, by unlawful discrimination."

False confession verdict for $6.5 million is sustained on appeal

This is a hell of a case. The plaintiff gave a coerced confession for a double homicide that he did not commit, as the arresting officer took advantage of the plaintiff's schizoprehnia. The plaintiff spent over a decade in jail for this, but he was eventually exonerated after a law enforcement task force revealed that plaintiff had nothing to do with the murders, and other people eventually went to jail for these crimes. The jury awarded plaintiff over $5 million for pain and suffering and $1.5 million in punitive damages. The Court of Appeals affirms the verdict.

The case is Ortiz v. Stambach, issued on May 9, more than a year after oral argument. The factual background reads like a something out of a Netflix miniseries, or a John Grisham book. Defendant Stambach found a way to get Ortiz to confess to the murders. There was no corroborating evidence proving that Ortiz had killed anyone. The jury convicted Ortiz of murder. The U.S. Attorney's office eventually exonerated plaintiff, resulting in this lawsuit and the positive jury verdict.

The Court of Appeals (Leval, Bianco and Raggi) sustains the verdict, rejecting all of defendant's challenges, holding as follows:

1. The malicious prosecution verdict is sound because, while the grand jury indictment usually proves the officers had probable cause to arrest plaintiff, the jury was able to find the indictment was procured by fraud. Holdings like this in the Second Circuit are rare: it is difficult to prove such fraud, but in this case, the Court finds, the jury was able to credit plaintiff's testimony that his mental state at the time of the confession should have convinced the officer that plaintiff was making a false confession. That kind of circumstantial evidence is enough to win the malicious prosecution claim. We leave it to the jury to decide whether to believe a testifying officer in a case like this, especially since the officer had inconsistencies in his testimony. The jury disbelieved the defendant and that is enough for plaintiff to win. The fabrication of evidence verdict is also sound, largely for the same reasons the malicious prosecution verdict is sound. 

2. Defendant raises qualified immunity argument, which shields law enforcement from civil lawsuits if they acted reasonably in light of clearly established law. This immunity is a wild card in Section 1983 cases. There no way to really predict if prior case law is sufficiently similar to this case to defeat qualified immunity. Here, defendant actually waived the argument, failing to raise it at trial. That makes things easier for the Court of Appeals. In light of that waiver, he has to prove the verdict is a manifest injustice, but that is not an easy argument to win, certainly not on the facts in this case.

3. Defendant seeks a new trial based on the sufficiency of the evidence. But even assuming such an argument is reviewable on appeal, "the court should only grant such motion when the jury's verdict is egregious" or the jury has "reached a seriously erroneous result or the verdict is a miscarriage of justice." Since courts defer to the jury's credibility assessments, to articulate this standard is to resolve the issue. The Court finds no miscarriage of justice here.

4. By now you can see why the Court sustains the $1.5 million in punitive damages. The jury was able to find the coerced concession was egregious and malicious sufficient to support this relief. As for the pain and suffering, while the courts have authority to reduce the damages, the jury was able to credit plaintiff's testimony about how horrible prison conditions were in light of his mental health struggles, and courts have awarded $1 million for each year of wrongful incarceration.

2d Circuit rules against Trump administration in free speech visa-revocation case

TrumpWorld has now reached the Second Circuit, which holds that the administration cannot stay a district court order that a Turkish graduate student at Tufts University who was picked up by ICE and relocated from Massachusetts to Vermont due to her political opinions cannot have her habeas corpus petition decided in a Vermont federal court. That issue may seem relatively mundane. What is not mundane are the allegations resulting in the habeas petition and how the Court of Appeals sees the case.

The case is Ozturk v. Hyde, issued on May 7, only one day after oral argument. The Second Circuit is moving quickly on this case. As background, Ozturk was studying in Massachusetts when ICE seized her and took her to Vermont, and then to Louisiana. Her attorneys filed the habeas petition in Massachusetts, but the judge sent the case to Vermont, because that is where ICE took Ozturk. For a time, her lawyers did not know where Ozturk was, so they filed the petition in Massachusetts. While the government says the case transfer to Vermont was improper, even though it concedes it withheld Ozturk's whereabouts intentionally, the Court of Appeals says the case transfer was legitimate, noting that the government was responsible for the confusion since it moved Ozturk around the country without notifying her lawyers.

Since the administration wants to stay the district court's ruling that the habeas petition is properly heard in Vermont, it has to show its defense to this case is meritorious; that is the heart of any injunction application. As noted above, the Court of Appeals flatly rejects the government's arguments. The habeas petition will be resolved in federal court in Vermont. 

The noteworthy portion of the ruling, for those of you whose eyes glaze over in reading statutes and caselaw relating to habeas petitions, is how this case started in the first place. Ozturk is a third-year doctoral student on a visa who studies Child Study and Human Development. She co-authored an opinion piece for the student newspaper that took a strong position on Tufts University's response to resolutions passed by the student government that would have the university "acknowledge the Palestinian genomics, apologize for [the] University President['s] ... statements, disclose its investments and divest from companies with direct or indirect ties to Israel." 

In other words, she advanced a common editorial theme at American colleges and universities these days. The administration seized her and placed her in custody on the basis that she "had been involved in associations that may undermine U.S. foreign policy by creating a hostile environment for Jewish students and indicating support for a designated terrorist organization including co-authorizing an op-ed that found common cause with an organization that was temporarily banned from campus." In other words, heavily-armed plainclothes officers, some of them masked, arrested Ozturk without warning, and without a chance to speak with counsel, due to her editorial in the student paper. The State Department approved revocation of her visa "based solely on the assessment by DHS and ICE that Ozturk's co-authorship of the op-ed a year earlier demonstrated her involvement in organizations that may undermine U.S. foreign policy."

The Court of Appeals (Parker, Nathan and Carney) feels strongly about this case. It was argued yesterday and decided today in a lengthy ruling. You rarely see that. The Court also emphasizes throughout the ruling that this happened to Orzurk because she wrote an editorial for the student newspaper that criticized Israel. The Second Circuit -- no Circuit, really -- will come out and say it, but my guess is the Court is horrified what happened here.

First Department allows plaintiff to sue anonymously

Most plaintiffs file lawsuits in their name, but some cannot. They proceed as John Doe or Jane Doe, but proceeding anonymously requires permission from the trial court, which weighs different factors in determining if the public's right to know the parties to public lawsuits is outweighed by the plaintiff's right to privacy. These motions are not always granted. In this case, the trial court denied Jane Doe's motion, but the First Department says Jane Doe can proceed anonymously.

The case is Doe v. Kipp, a First Department ruling issued on May 6. I briefed and argued the appeal. Doe is a teacher for a charter school who was fired after highly intimate video circulated in the school community depicting her in a sex act. Her affidavit in favor of anonymity said there was no way her career would survive if she had to litigate this case case under her name, and it explained the psychological damage that would ensue in the event she could not proceed as Jane Doe. The trial court denied her motion, and the case went to the First Department. Here is the reasoning:

Defendants do not identify any source of prejudice to them from allowing plaintiff to proceed by pseudonym, as they know who she is and therefore are not impeded in mounting a defense . The public interest in disclosure of plaintiff’s identity is also minimal. Even if the charter school defendants were deemed public entities for these purposes, that fact would not be dispositive, especially because plaintiff is not requesting that court records be sealed or public access denied. Furthermore, the termination decision at issue here is not claimed to be the result of any government policy.

One issue was whether the identity of the defendant, a charter school, factored into whether plaintiff could proceed anonymously. A line of cases makes it harder to proceed as a Jane Doe plaintiff when she is suing a governmental entity. But charter schools are not not quite governmental entities, though they are regulated by the government. Defendant's status as a charter school, highly relevant to the trial court's ruling against plaintiff, did not prevent the First Department from ruling in her favor.

It was not clear to the plaintiff's team why the defendant fought so hard to prevent plaintiff from suing the charter school anonymously. Their appellate briefs argued in part that the public has the right to know plaintiff's identity since it might have been her fault that students had accessed the sex video. But the lawsuit did not concede that it was her fault that students had accessed the video, and it may have been that she was the victim of "revenge porn."
 

 

Did colleges breach an implied contract right in denying classroom instruction during COVID?

When COVID-19 shut down the world in spring 2020, colleges and universities began on-line instruction. Students the sued these institutions for breach of contract, claiming the remote instruction, instead of the in-person instruction, denied them their money's worth, or that the remote instruction was not consistent with promises made by the college when the students paid their tuition. These cases have been kicking around for a few years now. The Second Circuit now determines that the State Court of Appeals needs to issue a definitive ruling on these issues, and that is where this case is now going.

The case is Beck v. Manhattan College, issued on April 29. Our issue: can the students bring an implied contract claim in these circumstances? Surely online instruction is not the same as classroom instruction. The problem is the cases are all over the place on this issue.

The Second Circuit, for example, held in Rynasko v. Albany College of Pharmacy, 633 F.3d 81 (2d Cir. 2021), that when the college markets itself as a great place to learn on campus and promotes the benefits of in-person instruction, the college is creating an implied contract that the students will enjoy those benefits. Of course, the worldwide pandemic made those benefits impossible. But the state courts have ruled differently. The Second and Fourth Departments have held in COVID-19 cases that a similar breach of contract claim cannot lie, as the college's advertisements and representations about the benefits of on-campus instruction were too vague to create an implied contract right. The Fourth Department has even said that Rynasko was wrongly decided. 

The Second Circuit has authority to certify a state law issue to the New York Court of Appeals for a definitive ruling on the issue. When the State Court of Appeals resolves the disputed legal issue, the case returns to the Second Circuit to apply the new ruling to the facts of the federal case. That will happen here. 

In certifying the case for New York's highest court, the Court of Appeals notes, "the New York Court of Appeals has not yet resolved whether New York law requires a specific promise to provide exclusively in-person learning as a prerequisite to the formation of an implied contract between a university and its students with respect to tuition payments. The Second Circuit (Sullivan, Nathan and Kahn) further states that New York has an important interest "in determining the allocation of losses arising from the COVID-19 pandemic between a student and a university and in more broadly setting forth guidance for whether and when courts should find an implied contract between students and universities."

Qualified immunity denied in Vermont health-case protest case

This case arises from a non-violent protest in Vermont, where plaintiff, who had linked her arms with her compatriots, was forcibly removed from the statehouse during a mass protest in favor of universal healthcare. While the forced removal caused plaintiff to suffer physical injuries, the trial court granted the arresting officer qualified immunity. The Court of Appeals reverses and finds the jury could find the defendant violated clearly-established law under the Fourth Amendment.

The case is Linton v. Zorn, issued on April 24. The opinion provides a minute-by-minute account of plaintiff's arrest, thanks to video footage. The opinion says the officers used "pain compliance" methods to force plaintiff's removal from the statehouse after she said she was already in pain and unable to comply with their directive to leave.

The Court of Appeals (Sack and Perez) finds that, if the jury accepts plaintiff's version of events, clearly-established case law had placed the officer on notice that he was violating the Fourth Amendment. That case was Amnesty America v. Town of West Hartford, 361 F.3d 113 (2d Cir. 2004), where the Court of Appeals said anti-abortion protesters who had employed passive resistance techniques to impede their arrest (going limp, etc.) could sue the police for the use of excessive force. While Amnesty America was not a qualified immunity case, it was a Fourth Amendment case, and that is enough to put the officers on notice that such actions may violate clearly-established law. Other cases hold that the use of gratuitous force may also violate the Fourth Amendment. In sum: "we conclude that Amnesty America did clearly establish that the gratuitous use of pain compliance, techniques -- such as a rear-wristlock -- on a protester who is passively resisting arrest constitutes excessive force and is therefore violative of that arrestee's Fourth Amendment rights."

When you frame the qualified immunity issue that way, it supports plaintiff's case and mandates reversal of summary judgment  The Second Circuit holds that her case is close enough to Amnesty America that the officers were on notice that that they could be violating established legal principles, as defined through Second Circuit case law. While the Court thinks the jury would find that plaintiffs was resisting arrest and would not leave the statehouse willingly, the Court also finds the jury could find the use of force was excessive in forcing her removal. Since resisting arrest does not invite the use of excessive force, only some necessary force, the jury must decide if defendant used excessive force. The Court recognizes the jury could go either way on this issue.

Judge Cabranes dissents, noting that the trial judge had changed his mind during the case on whether Amnesty America created the clearly-established right recognized by the majority. If judges cannot agree on what is a clearly-established right, then police officers cannot be expected to, either. Nor does Judge Cabranes think that Amnesty America is close enough to this case as to disentitle the officer to qualified immunity. This judge also finds, upon reviewing the video, that this "was a routine arrest and removal" without any "specter of disproportionality," as plaintiff was "adamantly refusing to leave and resisting arrest -- at one point  nearly striking [defendant] in the face." Defendant "had limited options at his disposal to safely navigate the situation." 

The dissent suggests the Second Circuit  is not entirely faithful to Supreme Court authority of qualified immunity: "there is growing daylight between our Circuit's holdings on qualified immunity and the clear teachings of the Supreme Court." The reason for this may be that qualified immunity is difficult to define and its application turns on the unique facts of each case. This immunity has bedeviled judges and lawyers for years. There is in fact strong language in the Supreme Court that this immunity is quite forgiving for defendants, and that the plaintiff needs a damned strong case to overcome the qualified immunity defense. My guess is that Judge Cabranes's language, and his observation that the Second Circuit is straying from Supreme Court authority on this issue, will invite an en banc petition in the Court of Appeals and a certiorari petition in the Supreme Court if that effort fails.

Court of Appeals affirms 25% reduction in attorneys fees despite successful appeal

The trial court's discretionary authority to award attorneys' fees is difficult to challenge on appeal. This case highlights that dynamic. 

The case is Franco v. Gunsalus, a summary order issued on May 1. I briefed and argued the appeal. Plaintiff was falsely arrested and beaten up by a Syracuse police officer. A second officer was also found liable for false arrest. The lawsuit pled numerous other claims and sought a ton of money in damages. The jury returned a verdict on the false arrest, malicious prosecution and excessive force claims, awarding $5,001.00 in damages. The other claims were dismissed prior to trial or rejected by the jury. After the jury returned the verdict, the City took up an appeal, but the Court of Appeals affirmed. Plaintiff's counsel moved for attorneys' fees; the civil rights laws award such fees to prevailing parties. The fee motion is the subject of this appeal.

The trial court reduced the overall attorneys' fees by 25%, including the work expended in successfully defending the verdict post-trial and on appeal. In performing that work, plaintiff's counsel was no longer defending failed claims; he was defending successful claims that the City was trying to overturn on appeal. Yet, the district court, in ruling on the attorneys' fees motion, extended the 25% overall reduction in fees to the post-verdict work, including the appeal. The "lost" fees post-verdict amounted to about $15,000.

The Court of Appeals holds the trial court acted within its discretion in applying the 25% reduction to post-verdict work defending the trial victory in both the district court and the Second Circuit. Here we deal with the broad discretion that district courts enjoy in awarding attorneys' fees. Those rulings can be appealed, but 95% of those appeals affirm the district court's ruling. This case was different, we argued, because the 25% overall reduction cut back on fees in defending the verdict, challenges raised by the City. The Court of Appeals affirms the trial court's ruling, noting that the jury awarded far less than the amount sought in the complaint, and various claims were dismissed prior to trial or rejected by the jury.

While the Court of Appeals (Menashi, Chin and Jacobs) notes that some trial courts "have calculated fees with a method that distinguishes between trial and post-verdict work, no applicable precedent mandates that approach." Without binding precedent on this issue, the Court of Appeals follows the Supreme Court's overall direction that courts "should focus on the significance of the overall relief obtained by the plaintiff throughout the litigation as as whole."