Supreme Court allows religious parents to opt-out of LGBTQ curriculum

The Supreme Court has held that the Free Exercise Clause of the First Amendment requires public school districts to allow parents to withdraw their children from classes that assign books that showcase LGBTQ themes. 

The case is Mahmoud v. Taylor, issued on June 27. The parents in this case live in Montgomery County, Maryland, where the school district introduced LGBTQ+ texts into the public school curriculum, approved for students from kindergarten to fifth grade. The religious parents wanted their kids to opt-out of this curriculum, but the school district declined. Hence, this lawsuit.

Writing for the six-Justice majority, Justice Alito opens with a discussion of several prior Supreme Court cases, including West Virginia v. Barnett (1943), where the Court said the Free Exercise Clause bars schools from coercing children to recite the pledge of allegiance. That case was brought by Jehovah's Witnesses. Since Barnette is not quite this case, in that it involves coerced speech, Alito turns to Wisconsin v. Yoder, a Supreme Court ruling from 1972, where the Court held that the Free Exercise Clause required public schools to exempt Amish children from their high school education entirely on the basis that compulsory high school education posed "a very real threat of undermining" the religious beliefs and practices that the parents wished to instill in their children.The substantial burden that Wisconsin's compulsory education law posed to the parents' religious rights led the Court to allow them to remove their kids from high school on religious grounds.

On the basis of Yoder, the Court says that the LGBTQ+ books carry "a very real threat of undermining the religious beliefs that the parents wish to instill in their children. Like the compulsory high school education considered in Yoder, these books impose upon children a set of values and beliefs that are 'hostile' to their parents' religious beliefs. And the books 'pressure to conform' to their specific viewpoints." Elsewhere, Alito writes that "the storybooks unmistakably convey a particular view point about same-sex marriage and gender," substantially interfering with the parents' right to instill certain religious values in their children.

Three Justices dissent: Sotomayor, Jackson and Kagan. All three were appointed by Democratic presidents. The six-justice majority are Republicans. This pattern is now commonplace at the Supreme Court. Sotomayor starts out by stating the majority has seriously misread Yoder because the Court ruled as it did in that case because compulsory high school education would not simply undermine the parents' religious values but would entirely foreclose Amish religious practice "by taking children away from their community at a time when they must acquire . . . the specific skills needed to perform the adult role of an Amish farmer or housewife," requiring the parents to "abandon" their faith. This would "result in the destruction of the Old Order Amish church community as it existed in the United States" as "compelled attendance effectively barred integration of the Amish child into the Amish religious community."

As Sotomayor sees it, the books in this case would never have the substantial adverse effects that compulsory high school education would have on the Amish religion. That would distinguish this case from Yoder. Sotomayor reviews the content of these childrens' books (and reprints some of them in her opinion) and finds nothing coercive about them, only that they would expose children to the LGBTQ+ world no differently than schoolhouse lessons about other cultures in the United States. Moreover, she worries, "given the multiplicity of religious beliefs in this country, innumerable themes may be contrary to the religious principles that parents wish to instill in their children." The majority's holding, Sotomayor writes, would give any number of religious groups the open to opt-out of public school curricula and wreak havoc on public education.

What we see in this case are two very different visions of what the Free Exercise Clause requires under the First Amendment. We also see to very different ways to interpret a 53-year-old Supreme Court ruling. All the justices who resolved Yoder are no longer with us, and several have been replaced several times over. This is an excerpt from the Yoder ruling:

As the record shows, compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large or be forced to migrate to some other and more tolerant region. 

In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents' entire mode of life support the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger, if not destroy, the free exercise of respondents' religious beliefs.

You can see how unusual the Yoder case was: the parents asserted that sending their kids to high school would seriously damage their religion. Yoder is sufficiently unusual that, to my knowledge, no cases with facts like this have arisen in the Supreme Court ever since. But Yoder is still good law; it has never been overturned. The disparate interpretations of Yoder had by the current Supreme Court demonstrate how old precedents never die and can be reinterpreted over time.

Excessive force case will proceed to trial

In this excessive force claim, the plaintiff says that Syracuse police officers subjected him to excessive force after he drove off when the police asked to see his identification. The trial court denied the officers' motion for qualified immunity, and the officers appealed. The Second Circuit (Livingston, Park and Nardini) says this case has to go to trial.

The case is Dixon v. Brown, a summary order issued on June 24. After Dixon drove off, the police pursued him, though plaintiff says he posed no threat to the police but drove away because his children were in the vehicle. One officer fired five shots at Dixon's car, but then the police lost sight of Dixon, and he was later seen driving round on his rims (the tires were shot out) toward the Onondaga Nation Reservation. While the police activated their emergency lights and siren, plaintiff did not pull over and drove onto the Reservation before pulling over into a private driveway. Plaintiff says the police punched him in the face and pulled him from the car when he was slowing to a stop. Plaintiff landed face down and an officer jumped on top of him while plaintiff's arms were underneath his body, unable to move his hands. The officers repeatedly struck plaintiff.

The district court denied the officers' qualified immunity motion, stating that, from plaintiff's version of events, he was already subdued when the officers struck him. The jury could find otherwise, but officers do not get summary judgment when the jury could also rule for the plaintiff. The same holds true on qualified immunity motions. While the officers said plaintiff reasonably appeared to be resisting arrest, thus justifying the use of force, since the jury does not have to accept that argument, qualified immunity cannot be decided until trial.

The Court of Appeals will entertain qualified immunity appeals prior to trial if the officers argue that, even from the plaintiff's vantage point, the officers acted reasonably under the circumstances. But if the trial court says that disputed facts prevent the grant of qualified immunity until after trial, then the appeal is premature and will be dismissed. This area of appellate practice is complex, as most appeals cannot be filed until the entire case is over. But since qualified immunity allows the officers to avoid suit entirely, we permit these "interlocutory appeals."

The problem for the officers is that they have not accepted plaintiff's version of events for purposes of pursuing this appeal. They maintain that plaintiff was actively resisting, even though plaintiff denies it. That is now how we take up interlocutory qualified immunity appeals. Again, the officers have to argue that they acted reasonably even upon the plaintiff's version of events. There are simply too many disputed issues for the jury for the Court of Appeals to rule on qualified immunity. The case returns to the Northern District of New York to empanel a jury to sort the whole thing out.

When does a discrimination plaintiff recover punitive damages under the New York City Human Rights Law?

We all know the New York City Human Rights Law is an expansive statute intended to provide greater rights for employment discrimination plaintiffs than its federal counterparts, Title VII and Section 1981. The same holds true for the HRL's punitive damages provision. This case tells us, however, that even a victorious case under the City law will not necessarily entitle you to punitive damages.

The case is Edelman v. NYU Langone Health System, issued on June 18. I wrote about the retaliation component of this case at this link; the jury found in plaintiff's favor on her retaliation claim, awarding her $700,000 in damages, upon finding that after she complained repeatedly about workplace discrimination, her supervisors began documenting her alleged performance deficiencies in order to justify her termination. This scheme was intentional, the jury found. While the trial court vacated the jury's verdict, determining that plaintiff did not have enough evidence to win the case, the Court of Appeals (Merriam, Walker and Robinson) reinstated the verdict because there was in fact enough evidence to justify the jury's findings.

During trial, plaintiff wanted the trial court to issue a punitive damages charge under the City law, but the judge declined to do so. Plaintiff challenges that ruling on appeal. The standard for punitive damages under Title VII is whether the defendant acted maliciously or with wanton disregard for the plaintiff's civil rights. But in 2017, the New York Court of Appeals, in Chauca v. Abraham, 30 N.Y.3d 325 (2017), relaxed the standard under the City HRL, ruling that punitive damages are warranted even if the defendant acted with "willful or wanton negligence, or recklessness, or conscious disregard of the rights of others or conduct so reckless as to amount to such disregard." I argued Chauca in the State Court of Appeals and asked that court to rule that if the jury finds the defendant intentionally discriminated against the plaintiff, that is enough for punitive damages; the theory was that intent to discriminate equals reckless disregard for the plaintiff's rights. The State Court of Appeals, by a 6-1 vote, disagreed. Still, the Chauca standard is better for plaintiffs than Title VII.

Plaintiff argued in this case that the Chauca framework entitled her to punitive damages, and that the jury should have been able to rule on that issue. After all, defendants intended to retaliate against plaintiff in a blatant way, creating a paper trail to justify her termination after she objected to discrimination. But the Second Circuit sustains the trial court's ruling against charging the jury on punitive damages, holding as follows:

we conclude that the record supports a finding that the defendants retaliated against Edelman, but that is not sufficient to justify an award of punitive damages. Edelman argues that “[t]here is not such a complete lack of evidence with regard to punitive damages that a jury should be prevented from considering [the issue].” However, Edelman does not point to any evidence presented at trial suggesting that any of the defendants retaliated against her “with willful or wanton negligence, or recklessness, or a conscious disregard of the rights of others,” or with a higher degree of moral culpability than is present in every instance of retaliation in the workplace.

This is sparse reasoning, and the Court does not fully explain why the evidence does not show, at a minimum, recklessness disregard for plaintiff's rights. But since is among the few Second Circuit holdings that applies Chauca in a real-work context -- post-trial on a plaintiff's verdict -- this holding will be the guidepost for future cases.
 

When can the police review your cell phone without a warrant?

The Second  Circuit has clarified when the police may search your property after a third party alerts them to illegal and disturbing things in your cell phone.This case stems from a criminal defendant's girlfriend telling the police that he had child pornography on his phone.The defendant's criminal conviction is upheld.

The case is United States v. Hines, issued on June 11. The girlfriend, identified in the ruling as KS,  knew the password and poked around in Hines' cell phone and found the images. She took the phone to the police station and voluntarily showed an officer the photos. The officer testified that he never asked KS for the password and that she took the initiative in unlocking the phone and displaying the images. While KS and defendant were living together, she noticed that defendant would panic when he forgot to bring his phone to work and would "freak out" and return home in looking for it. I guess KS wondered what he was trying to hide.

The facts relating to this appeal were developed at a suppression hearing. The Court of Appeals will defer to the trial court's factual findings. That's a basic rule of appellate practice: the Second Circuit will not second-guess the district court's factual findings unless the district court's findings were clearly erroneous, a standard of review that is very difficult to overcome.

Based on what KS had shown the police, they got a search warrant for the phone and KS was indicted and eventually pled guilty, challenging the legality of the search on appeal. He was sentenced to 12 years in prison. The Court of Appeals (Sack, Carney and Bianco) says the search was not the product of an unlawful initial search. The reason for this is that, when KS first showed up the police station with defendant's phone, the police did not ask her for the password; rather, KS unlocked the phone on her own and displayed the child pornography for the officers. 

While a search instigated by the police may sometimes be attributable to the government for purposes of the Fourth Amendment, thereby implicating this constitutional privacy protection, this rule does not apply when "the state merely approves of or acquiesces in the initiatives of the private entity." That language draws from a Second Circuit case from 2008.The Second Circuit finds that KS was not acting as an agent of the police when she unlocked the phone and showed images of child pornography to the police. When the police saw these images, it was not a search for purposes of the Fourth Amendment because KS was not a de facto agent of the police at that time. The subsequent search warrant to further review the phone was thus not tainted by that initial phone review.

Supreme Court gives one to the inmates

The Prison Litigation Reform Act was enacted in 1995 to make it harder for inmates to bring lawsuits against their jailers. They can still sue, but they have to file internal grievances first with the jail, even if they know the grievance will be denied. Once those grievances are resolved, the inmates then bring the lawsuit. Nearly 30 years later, the courts are still untangling the PLRA's language. In this case, the Supreme Court determines when the inmate is entitled to a jury trial when the jail disputes whether the inmate properly filed an internal grievance.

The case is Perttu v. Richards, issued on June 18. Of course, if the inmate does not bother to file a grievance, there is no lawsuit. It gets trickier if the correction officer denies the inmate a chance to file a grievance. The inmate can tell the court that he did not file the grievance because the CO denied him the grievance form, or that he filed one but someone at the jail threw it in the garbage pail. 

For years, the courts have grappled with how to proceed when the inmate says the jail interfered with or obstructed the grievance process. Many courts would hold an evidentiary hearing on this issue: the inmate would testify that the CO obstructed the process, and the CO would denial any such maneuver. The trial judge would decide who was telling the truth.

Here, plaintiff says the CO had sexually assaulted him. The defendants argue that plaintiff did not exhaust his administrative remedies in failing to properly file the grievance. The issue of whether the plaintiff filed the grievance is intertwined with the merits of his case, brought under the First Amendment, as plaintiff argued that he suffered retaliation for filing the grievance. The grievance itself is protected activity under the First Amendment. 

The Court holds that, as a matter of statutory interpretation, inmates "have a right to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that falls under the Seventh Amendment," which provides for jury trials in civil actions brought under the Constitution. The PLRA does not speak to issue, as most federal statutes do not address many of the issues that wind up in the courts, eventually the Supreme Court. When the PLRA was enacted in 1995, "it was well established that when a factual dispute is intertwined with the merits of a claim that falls under the Seventh Amendment, that dispute should go to the jury, even if that requires judges to defer to determinations they would ordinarily make on their own." The PLRA's silence on this issue suggests that Congress intended that this practice apply in cases like this.

It may be better for inmates to have this issue resolved by the jury and not a stuffy judge. If the case is filed in a liberal jurisdiction, the jury may find the inmate credible upon his testimony that the jailer obstructed the grievance process. Anyway, since Chief Justice Roberts writes for the majority, which includes Sotomayor, Kagan, Gorsuch and Jackson, four justices dissent. Justice Barrett writes that "the jury-trial right conferred by the Seventh Amendment does not turn on the degree of factual overlap between a threshold question and the merits of the plaintiff's claim."

 

Supreme Court narrowly interprets Americans with Disabilities Act for disabled retiree

The Supreme Court has narrowly interpreted the Americans with Disabilities Act in holding the law does not prohibit employers from providing disabled retirees with lesser health-insurance benefits than their non-disabled counterparts. 

The case is Stanley v. City Sanford, issued on June 20. Plaintiff was a firefighter. When the city hired her in 1999, it offered the same health insurance benefits for retirees with 25 years of service and those who retired earlier due to disability. But that policy changed in 2003, when the city provided health insurance up to age 65 only for retirees with 25 years of service, but those who retired earlier due to disability only got 24 months of health insurance. 

While the policy provides lesser health insurance benefits to disabled retirees, it does not violate the ADA because, under the terms of the statute, plaintiff was not a qualified individual with a disability when the policy was applied against her in 2018, when she took a disability-related retirement. The Court, in a 7-2 vote (Justice Kagan voted with the conservatives), reaches this holding through a straight textualist interpretation of the ADA, an approach the Court has been taking in recent Title VII and other discrimination statutes. 

The plain language of the ADA covers qualified individuals with a disability. The statute speaks in the present tense, referring to current employees, making it unlawful to "discriminate against" someone who "can perform the essential functions" of the job she "holds or desires." Writing for the Court, Justice Gorsuch writes that "Those present-sense verbs signal that [the ADA] protects individuals who, with or without reasonable accommodation, are able to do the job they hold or seek at the time they suffer discrimination." However, the Court says, "the statute does not reach retirees who neither hold nor desire a job at the time of an alleged act of discrimination." Other portions of the ADA also appear to cover present employees, not former employees. In contrast, Title VII contains provisions that expressly protect former employees. 

A plurality of the Court identifies ways that former employees may win a case like this, but none of these scenarios help the plaintiff here. One way to sue is if the employer adopts the policy when the plaintiff was both disabled and qualified for her position when the employer adopted the discriminatory retirement-benefits policy. That did not happen here. Another option would allow people to sue if they were affected by the policy change when they were still qualified individuals, even if they are retired when they bring suit. Again, that does not apply to this case. A third option would take place when an individual is subject to a discriminatory compensation decision. That does not help plaintiff because the complaint does not assert enough facts that would bring her within this statutory protection.

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.