Disparate impact case for social workers' licensing exam is rejected on appeal

This race discrimination claim alleges that the licensing exam for certain social workers discriminates on the basis of race because Black and Hispanic test-takers perform significantly worse than white candidates but that the Association of Social Work Boards, which administers the tests, knew about these disparities but did not correct them, resulting the plaintiffs' failing test scores. The case loses even prior to the commencement of discovery.

The case is Alameda v. Association of Social Work Boards, a summary order issued on May 15. This is a disparate impact case, where the plaintiffs can win even if the testing board did not intend to discriminate on the basis of race. For a disparate impact case to succeed, however, the plaintiffs have to satisfy a demanding legal standard that employs statistics and particular formulas. But first we have a mundane legal issue under Title VII: can the plaintiffs even sue the testing company under this civil rights statute?

Under Title VII, you can only sue the employer for discrimination. The testing people were not plaintiffs' employers. Cases hold that you can hold a third-party liable under Title VII where your formal employer "has delegated one of its core duties to a third party." But the Second Circuit (Perez, Nathan and Katzmann [Court of Intern'l Trade]) finds the defendant here is not such a "third party" that would create an employee-employer relationship under Title VII. 

Plaintiffs also sue under Section 1981, which prohibits racial discrimination in making contracts. There is no employee-employer relationship requirement under Section 1981 in this case, but plaintiffs lose on a different ground relating to the merits of the case: they have not plausibly alleged a disparate impact claim.

Plaintiffs rely on statistics to assert their case, pointing to the disparate test results among white and Black and Latino/a test-takers. But under the cases, to assert such a claim based on statistics alone, you have to show the statistical disparity is "of a level that makes other plausible nondiscriminatory explanations very unlikely." In other words, you need a dramatic statistical disparity. The Court holds that the statistical disparities here do not satisfy that demanding test.

First Department reinstates sex discrimination case

The Appellate Division has reinstated a sex discrimination case against a securities firm on the basis that the case is not untimely and the plaintiff can argue that her termination was the product of a continuing violation. This is a useful ruling for employment discrimination plaintiffs under the New York City and State Human Rights Laws.

The case is Farmer v. Mizuho Securities, LLC, issued on May 12. Plaintiff claims the brokerage firm assigned her a smaller percentage of the market and a lower risk limit compared with male colleagues, and that a supervisor made disparaging comments about her appearance and suggested that she use her gender to gain favor with male colleagues. After plaintiff complained to HR about this, the supervisor vowed to get her fired, and he disparaged her job performance to others at the firm, calling her a cheater. She was forced to resign against her will. 

While the lower court dismissed the case on the pleadings, the First Department holds the plaintiff has a viable case, noting that pleading standards under the City law are lenient in discrimination cases, in contrast to the federal system, where cases are dismissed under a more exacting test thanks to the Supreme Court's dual rulings in the late 2000's, Twombly and Iqbal. "Given the allegations that defendant terminated plaintiff following months of consistently disparate treatment, plaintiff adequately pleads a causal connection between the disparate treatment and the termination. In addition, plaintiff's allegation that defendant falsely characterized its decision to end her employment, stating that it was a voluntary departure, further raises an inference of discrimination."

In emphasizing that federal pleading standards do not apply in state practice, the First Department says out loud what few state appellate rulings have overtly said on this topic, though the understanding that Iqbal pleading does not apply under the Civil Practice Law and Rules.  

The hostile work environment claim is also reinstated. While the lower court said this claim fell outside the statute-of-limitations, "the complaint, as pleaded, sufficiently alleges that the termination was the culmination of a single continuing pattern of discriminatory or retaliatory conduct extending into the limitations period, thus linking the wrongful conduct to the termination. It cannot be said as a matter of law that [the] alleged discriminatory and retaliatory acts . . . were not part of a single continuing pattern of unlawful conduct extending into the three-year period immediately before the filling of the complaint."

The First Department further holds that plaintiff's termination falls within the continuing violations rule, rejecting the trial court's ruling that her termination should be considered legally distinct from other kinds of gender-based treatment. The Court observes, "The City HRL focuses on unequal treatment regardless of whether or not the defendant has engaged in tangible conduct, such as hiring and firing. Thus, under the City HRL, the continuing violation doctrine can operate to link untimely allegations of unequal treatment to timely allegations of unequal treatment, such as plaintiff's termination."

Finally, have have further proof that the State and City HRL's should be interpreted identically. The City HRL, and its liberal proof requirements, has been on the books for several decades. When the State Legislature amended the State HRL in 2019, it was unclear if that law aligned with the City law. It does. Courts are now saying as such, and the First Department explicitly says so in this ruling, perhaps for the first time, though it cites Syeed v. Bloomberg LP, 41 N.Y.3d 446 (2024), a State Court of Appeals case, for that principle. 

Bergstein & Ullrich prevail in striking down speech rules at West Point

Judge Lifts West Point’s Restrictions on Civilian Professors’ Speech

A federal judge also said that the government had offered no real justification for limiting the ability of a professor who sued to express opinions in a Military Academy classroom.

The Military Academy at West Point cannot limit certain speech of its civilian faculty, a federal judge ruled.Credit...Nathan Howard/Reuters

By Benjamin Weiser

May 26, 2026

The Military Academy at West Point cannot require civilian faculty members to obtain approval before using their West Point affiliation to speak to outside audiences about their areas of expertise, a federal judge ruled on Tuesday.

The academy also cannot prevent a professor, Tim Bakken, from expressing his opinions to students in the classroom on subjects he teaches, Judge Cathy Seibel of U.S. District Court in White Plains, N.Y., said in the ruling.

Professor Bakken, who has taught at West Point since 2000, had sued the academy, saying that its policies had violated the First Amendment. He has spoken and written frequently and at times critically about the U.S. military, including West Point, his lawsuit notes.

Judge Seibel issued a preliminary injunction blocking both the approval requirement and the restrictions on Professor Bakken’s speech.

She said that the government had offered no real justification for limiting his ability to express opinions in the classroom. She said the rule was “nonsensical if the mission is to prepare the nation’s future military officers.”

“For genuine strength and leadership to result,” Judge Seibel wrote, “cadets must be exposed to a variety of viewpoints and trained to think critically about them.”

“West Point cadets are already, by definition, smart, tough and patriotic,” the judge added. “They are not snowflakes who will somehow be harmed by learning about controversial issues or competing viewpoints. They will not somehow be weakened in their future defense of our country if their classroom discussions are robust and open.”

The judge noted in her decision that the policies at West Point followed an executive order, “Restoring America’s Fighting Force,” signed by President Trump a week after he took office. It was aimed at Diversity, Equity and Inclusion programs within the military and also barred the military from promoting certain “un-American, divisive, discriminatory, radical, extremist and irrational theories,” the ruling noted.

Mr. Trump has targeted mostly private universities and their faculty since returning to office last year, often threatening to cut off funding, and accusing them of antisemitism and indoctrinating students with ideas that run contrary to his agenda. Many of the schools, including some of the most elite ones, have settled in order to avoid further investigations and restore funding.

At West Point, following the order from Mr. Trump, professors were asked to remove course materials that discussed race, gender or painful parts of American history, The New York Times reported in May of last year.

Professor Bakken, 68, who obtained his law degree from the University of Wisconsin Law School, is the longest-serving law professor in the military academy’s history, his suit says. He is also the author of a 2020 book, “The Cost of Loyalty: Dishonesty, Hubris and Failure in the U.S. Military.”

The requirement that faculty members obtain prior approval when using their West Point affiliation to speak to outside audiences lists examples like journal publications, media interviews, social media posts and podcasts, according to a copy of the policy attached to the lawsuit.

As for restrictions in classrooms, Professor Bakken said in court papers that before the directive, he routinely shared his views on topics he taught in class. He no longer does so, he says. In court papers, he cited questions he received from cadets during the fall 2025 semester seeking his opinion on whether the death penalty is effective or about the value of the movement for deinstitutionalization of mentally ill people.

“I would have provided the cadets with my opinions and views in response to their questions,” he said in court papers. He added that he refrained from doing so because of the new rules.

Judge Seibel also denied the government’s request to dismiss Professor Bakken’s lawsuit. The government had argued that a government employer was entitled to place certain restrictions on speech, as in Professor Bakken’s case, “where the agency in question is a military academy charged with training the nation’s future military officers.”

The professor was free to speak “however and to whomever he chooses,” the government wrote, “so long as he does not utilize his West Point affiliation.”

“When he seeks to invoke his status as a West Point professor,” the government said, “there is a risk that whatever message he is espousing becomes attributable to West Point or the Department of Defense.”

Professor Bakken said on Tuesday that he was grateful that he and his colleagues were “free again to search for truth, and not be subject to the censorship of the military and the government.”

“The most serious threat to free expression is a prior restraint,” he said, “and the U.S. Military Academy applied it to all of its civilian professors.”

Professor Bakken’s lawyers, Jonathan R. Goldman and Stephen Bergstein, said the lawsuit seeks class-action status on behalf of all civilian professors at West Point, and they will now seek a permanent injunction against the policies in question.

The military academy declined to comment, citing the pending litigation. The U.S. attorney’s office for the Southern District of New York did not immediately respond to requests for comment.

West Point’s faculty includes 188 civilians and 495 military officers, according to a declaration filed in the case.

Benjamin Weiser is a Times reporter covering the federal courts and U.S. attorney’s office in Manhattan, and the justice system more broadly.

Father wins constitutional appeal after the city seized his child due to mother's neglect

This case arose when the government determined to remove the child, KA, from the plaintiff-father, KW, on the basis that the child's mother was unsuitable to raise KA due to neglect and problems relating to her prior children. KW paid the price for the mother's neglect, as the government separated him from his son for nearly three years. KW, who was never accused of wrongdoing, brought this due process case.

The case is KW v. City of New York, issued on May 19. The government summarily removed the child from KW on the basis that there was no time to obtain a court order. That makes this a Fourth Amendment and due process case, which the district court dismissed on the pleadings. The Court of Appeals (Sack, Perez and Briccetti [D.J.]) notes that while cases allow the government to remove the child without a court order, it needs to prove an immediate risk of harm to the child that makes it impossible to seek court intervention prior to removal. The issue is whether the government has "reasonably sufficient time" to get a court order. On this record, the government had such time, as it did not proceed with the sense of urgency that would normally attend an emergency child removal: after reviewing KW's residence shortly after his son was born, authorities actually allowed KW to remain with his son for the night, though he was required to bring the baby into the offices of the Administration for Children's Services the following morning. The jury could find that the government did have time to get a court order before taking the child into state custody.

Plaintiffs also sufficiently alleges that the lengthy separation between KW and KA violated the Fourth Amendment because they plausibly claim that caseworkers made intentionally false statements about KW in order to obtain the removal order that separated father from son. While there was in fact a removal order, and that may support a probable cause finding against the father, that presumption is overcome by the allegations that authorities acted in bad faith in removing the child.

As for the due process claim, the Court of Appeals notes that the father has a liberty interest in not being separated from his son, one of the oldest constitutional rights in the American system. But the lawsuit plausibly asserts that KW was denied sufficient pre-deprivation notice of the child-seizure and he was further denied an adequate opportunity to defend himself against the allegations against him. 

The City asserted a qualified immunity defense, arguing that they acted in good faith and therefore did not objectively know they were violating the law. But this appeal arises in a Rule 12 motion-to-dismiss context. Courts frown upon such early qualified immunity rulings without adequate discovery. Moreover, the complaint, if true, suggests the government did violate clearly-established case law in proceeding against the father.

Union's case against Trump administration's funding requirements is moot

Here is another case that originates from the current political environment: a teachers' union sued the U.S. Department of Justice, the Attorney General, and other high-ranking federal officials, challenging the Trump administration's termination of approximately $400 million in federal funding to Columbia University and its demand that the University agree to certain programmatic changes that would align with the conservative administration's policies. But then Columbia and the government struck a deal to restore the majority of the funding and Columbia agreed to implement certain reforms. Is the case now moot?

The case is American Association of University Professors v. U.S. Department of Justice, issued on May 14. The case is moot, says the majority (Chin and Kahn [Menashi dissents]), because the requested relief is no longer needed; the parties agreed to resolve the case on their own without court intervention. 

In the district court, the judge held the union lacked standing to even bring the case, and it thus denied the motion for preliminary injunction. The union appealed to the Second Circuit. While the case started out as an exciting attack on the Trump administration and its effort to force universities to adopt its policies, the case ends in a whimper, as the Second Circuit explores whether the case is moot and, if so, whether to vacate the lower court ruling in favor of the union. 

The question is what to do about the district court ruling that denied the preliminary injunction on standing grounds. The default rule is to vacate, or do away with, the ruling, which "clears the path for future relitigation of the issues between the parties" and ensures that unreviewable judgments do not "spawn any legal consequences." We have special rules guiding whether to vacate the lower court ruling, including whether the appellant is at fault for causing the mootness. For instance, if the appellant acts in a manner intending to moot the appeal, then we don't vacate the lower court ruling. But if the appeal becomes moot because of the appellant's good faith actions, then we have vacatur. In this case, the majority opts to vacate the lower court ruling because Columbia and the government took steps to mooting the case by reaching an out-of court resolution. 

Supreme Court to deterimine if Title IX authorizes employment discrimination lawsuits

The Supreme Court is going to decide whether sex discrimination victims may sue schools and universities under Title IX, which prohibits sex discrimination in federally-funded educational institutions. This case will resolve a split in the lower federal circuits, many of which (including the Second Circuit) hold that Title IX does authorize such cases, even if you can also bring these claims under Title VII.

The case is Crowther v. Board of Regents of the University System of Georgia. The case arises in the Eleventh Circuit, which said that Title IX does not authorize such lawsuits. Title IX is a close relation to Title VII, the general employment discrimination statute that allows plaintiffs to sue for sex discrimination against their employers. But Title IX is also a sex discrimination law, though it does not expressly reference employment cases; rather, it allows you to sue educational institutions for sex discrimination, which may encompass discrimination in high school sports or college programs.

Although Title IX does not explicitly state that it prohibits employment discrimination in the educational setting, according to the certiorari petition filed in Crowther, eight Circuit Courts have interpreted Title IX to permit private claims for sex discrimination in employment. The Second Circuit is one of those circuits, ruling in Vengalattore v. Cornell Univ., 36 F.4th 87 (2d Cir. 2022), that "Title IX allows a private right of action for a university's intentional gender-based discrimination against a faculty member." Citing prior Supreme Court authority, including Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Court in Vengalattore held that it is "now well settled that . . . a private right of action is implied" for employees under Title IX. In 2022, the Sixth Circuit held in Snyder-Hill v. Ohio State Univ., 48 F.4th 686 (6th Cir. 2022), that Title IX's implied right of action is not limited to students, and can also be invoked by employees, in that case, school-contracted referees. 

As I wrote in summarizing the Vengalattore ruling four years ago:

[Title IX] is often invoked in cases involving college sports, discrimination against students, and sexual harassment. Can you also sue for employment discrimination under Title IX (which does not require an EEOC charge and therefore has a longer statute of limitations?) In dismissing this claim, the district court stated that "[a]lthough the Second Circuit has not ruled on whether a private right of action exists under Title IX for claims of employment discrimination, '[a]n overwhelming majority of district courts in this Circuit have found that an implied private right of action does not exist[] under Title IX for employees alleging gender discrimination in the terms and conditions of their employment.'" The Court of Appeals disagrees and interprets Supreme Court authority to allow such claims, noting that the Court said in New Haven Board of Educ. v. Bell, 426 U.S. 512 (1982), that "employment discrimination comes within the prohibition of Title IX." Despite that language from Bell, courts were in disagreement about the scope of Title IX, but the Second Circuit notes that most of the other circuits are in agreement that employees may involve Title IX in employment discrimination cases. 

Three Circuits disagree with the Second Circuit and the other courts that permit employment discrimination cases under Title IX: the Eleventh Circuit, the Fifth Circuit, and the Seventh Circuit. But post-Jackson, the Eleventh Circuit is the only Circuit Court to hold as such; the other cases pre-date Jackson. So the Crowther case will focus on what the Supreme Court did in Jackson and what Jackson really means. The Supreme Court has a way of re-interpreting prior cases years later. The only Justice on the Jackson case who sits on the Supreme Court today is Clarence Thomas, and he dissented in Jackson. So we can't predict what will happen in Crowther.

Why sue under Title IX and not Title VII? For one thing, if you sue under Title VII, you have to file a charge of discrimination with the EEOC and then wait six months before you can file the lawsuit. Under Title IX, you can go straight to court without bothering with the EEOC, which may or may not investigate or try to mediate or do much of anything. Also, Title VII has a shorter deadline than Title IX. 

Wage-and-hour verdict is upheld on appeal

This wage-and-hour case went to trial in the Eastern District of New York. At the non-jury trial, the judge ruled for the plaintiff, holding that she was denied overtime pay, awarding damages in the amount of approximately $23,000 and about $70,000 in attorneys' fees. The Court of Appeals upholds the verdict.

The case is Heras v. Metropolitan Learning Institute, a summary order issued on May 18. It is very difficult to overturn a jury verdict, as the trial court has discretion to assess credibility and to determine the facts and draw reasonable inferences from those facts. Still, nobody likes to lose, which is why we have the Court of Appeals.

The employer claimed that plaintiff was exempt from the overtime pay rules because she was an "outside salesman." There is such an exemption, but the employer has the burden of proving that the plaintiff regularly works away from the employer's business and has the primary job of making sales or to obtain orders or contracts for services. I guess the rationale is that this work takes time and the plaintiff may spend more than 40 hours a week in this capacity, and she may also recover commissions from these sales that will make the extra work worthwhile.

The Court of Appeals (Lohier, Robinson and Nathan) rules that defendant did not prove that plaintiff fell within this exception. It was not plaintiff's job to make sales, which involves obtaining a commitment from customers. Instead she was a recruiter, "merely stimulating interest in the school but not obtaining a commitment." A fine line, but a line nonetheless. While defendants noted that those who recruited more students earned more money, "they cannot point to any record evidence that Heras received a commission or was otherwise compensated for her successful recruitment efforts." As such, making sales was not her "primary duty."

Racial stereotypes prompt First Department to reinstate lawsuit

The First Department has reinstated a racial discrimination lawsuit against the City of New York and a police department supervisor based on explicit and implicit racial comments made by the supervisor in the context of the plaintiff's employment.

The case is Taylor v. The City of New York, issued on May 19. Plaintiff is a Black man who worked for the NYPD. He sues under the New York City Human Rights Law, which the City Council intended to reach further than federal law, deemed insufficiently protective of plaintiffs' rights when the City HRL was amended in 2006. This ruling is far-reaching and provides some interesting holdings that plaintiff-side attorneys will embrace.

First, the supervisor, Toczek, made numerous comments disparaging Black NFL football players, including Colin Kaepernick, who engaged in public racial justice protests. When plaintiff told Toczek that these football players had a constitutional right to protest, Toczek said, "it's my right . . . if I want to like Black people." I am sure the NYPD claimed this comment was too vague to support a discrimination case, but the jury may find that Toczek was disparaging Black Americans. He also shared articles about Black NFL players committing crimes and described them as "perps." Toczek's comments lead the First Department to find that plaintiff suffered discrimination based on his race, as the lawsuit asserts this supervisor's subsequent actions against plaintiff were racially motivated. As the First Department says, Toczek's comment to plaintiff about his right whether to like Black people was facially discriminatory, "and is alone sufficient to defeat summary judgment." Under City HRL parlance, this was not an insubstantial comment or a "petty slight or trivial inconvenience." 

That brings us to an incident where Toczek had plaintiff accompany him to apprehend an arrestee who had previously assaulted police officers. Toczek told plaintiff, who is 6'7" and 260 pounds, that the arrestee will take one look at plaintiff and decline to fight, stating, "look how big you are." Plaintiff next suffered a serious physical injury in accompanying Toczek. Plaintiff sufficiently asserts a discrimination claim arising from this episode because "[a] reasonable juror could interpret Toczek's statements commending on plaintiff's physical appearance -- as compared with more slight white coworkers who were injured by the arrestee -- could have been racially-motivated and "communicated a decision-maker's explicit bias," and not a mere stray remark which would be nonactionable under the City HRL.

Moreover, "a reasonable juror could interpret Toczek's assertion that plaintiff's appearance, including his size, would deter violence from the arrestee, as an attempt to invoke the 'classic and common racist trope that Black men are inherently threatening or dangerous.'" The jury has to determine whether this was "coded racial language" or a permissible reference to plaintiff's size. That holding cites to a non-employment case, Matter of Putorti, in which a Justice of the Peace was disciplined for making a similar comment to a litigant who came before him. In that case, the New York Court of Appeals in turn cited to a law review article that addressed racial stereotypes, That makes this case the first employment discrimination case, to my knowledge, advancing this holding about racial stereotypes in the workplace through comments about the plaintiff's physical appearance.

Guns in public spaces, yes. Guns in public parks, no.

New York enacted a comprehensive gun control law in 2022, the same year the Supreme Court issued the Bruen ruling that made it much more difficult for the states to regulate guns, holding that any current gun regulations must have a historical analogue that was in place when the Bill of Rights was enacted in 1791, or when the Fourteenth Amendment was enacted in 1868. The '"historical analogue" framework requires judges to become historians as they try to determine what the gun laws looked like two centuries ago before comparing them to modern statutes. The entire process is uncertain, and some cases both uphold and strike down today's gun laws. This case is one of them.

The case is Christian v. James, issued on May 18. We have two challenges here. First, the plaintiffs, which include gun rights organizations, argue that a New York law prohibiting you from bringing a gun onto private property unless the property owner posts a conspicuous sign stating that guns are allowed. We call this the Private Property Provision. 

The plaintiffs argue that the Private Property Provision violates the Second Amendment as it applies to private property that is open to the public, like a gas station or grocery store. To win the case, the state has to show that a historical tradition supports this statute. But while the state presents a series of old laws from around the country that appear to prohibit weapons on private property without permission, the Court of Appeals holds these old laws are not sufficiently comparable to the New York law because the old laws were enacted for a different reason than the reasons motivating the modern New York law, that is, the old laws were in place to prohibit unauthorized hunting or drew from racial stereotypes. But barring unauthorized hunting and racial stereotyping is not what motivated New York to enact the gun control law in 2022. Rather, New York enacted the gun control law in 2022 to prevent school shootings and other gun disasters. A worthy goal, but there does not appear to be a historical analogue for such laws. This provision New York's gun law is therefore unconstitutional, as it does not overcome a principle goal of the Second Amendment: the right to self defense.

The other provision under challenge relates to public parks, a "sensitive location" under the gun control law where guns are disallowed. The state defends this provision by identifying more than 100 historical laws that are relevantly similar. The research in support of this argument, by the way, is impressive: the state finds laws from small to mid-size U.S. cities from the late 1800's and early 1900's. Where are they finding these old statutes? The research was time well-spent, as the Second Circuit (Bianco and Lee,  over Judge Menashi's dissent) finds these old laws proves a tradition of regulating firearms in crowded public forums. 

 

Abuse of process verdict is overturned post-trial

 This false arrest case went to trial in the Eastern District of New York. The plaintiff also asserted an abuse-of-process claim against the police. The case arose when plaintiff was arrested for trespass even thopugh he believed he had a legitimate lease to live in this house on Long Island; actually, he was fooled into thinking the lease was legitimate. When the police came, they threw him out of the house but did not arrest him for trespass until he called his lawyer, who told the police the arrest was illegitimate. The jury returned a verdict for the plaintiff on the abuse-of-process claim on the basis that the arrest was in retribution for plaintiff calling his lawyer. But the case was not over.

The case is Smith v. County of Nassau, a summary order issued on May 12. While the jury ruled in plaintiff's favor on the abuse-of-process claim, awarding him $251,000 in damages, it also said the police had probable cause to arrest him for trespass. So the trial court granted the County's post-trial motion for qualified immunity on the basis that the law is not clear whether probable cause is a full defense to an abuse-of-process claim. The Court of Appeals sustains the dismissal order, and the abuse-of-process verdict is gone for good. I briefed and argued the appeal.

Courts used to hold that false arrest and abuse-of-process claims are separate claims and that probable cause -- which is a full defense to a false arrest claim -- is not necessarily a full defense to an abuse-of-process claim, which requires a showing of malice in arresting someone, along with arresting someone for reasons having nothing to do with the legitimate criminal process, such as retribution. But then, over the years, the distinctions between these claims grew muddy. By 2016, the Second Circuit the law was no longer clear whether probable cause was not a defense to an abuse-of-process claim. That was the Mangano case. The law remains muddy such that the officers in this case are able to avoid liability because a police officer would not know that he cannot initiate legal proceedings against someone in a case like this.

Some trial courts in the Second Circuit got around the Mangano case by stating that probable cause is no defense to an abuse-of-process case if the malice element of the abuse-of-process claim does not solely turn on the lack of probable cause but instead some other illegitimate basis for the arrest, like retribution. We relied on those cases in trying to reinstate the verdict in this case. But after a spirited oral argument in January 2026, the Court of Appeals (Leval, Lynch and Sullivan) silently rejects that theory and stands firm in holding that the distinctions between false arrest and abuse-of-process claims are still too muddy to allow plaintiffs to sue the police when they have probable cause to make the arrest, even if the police also had ulterior motives to make the arrest.

Habeas petition denied where man shot and killed daughter's boyfriend

The plaintiff in this case challenges his criminal conviction on the ground that the state trial court did not properly apply the law governing when you are justified in causing someone's death. This case has a long road behind it, including an early favorable ruling from the Appellate Division, but in the end, the conviction is sustained and the plaintiff will have to serve his sentence for first-degree manslaughter,

The case is Brown v. James, issued on May 7. The facts are unpleasant. Plaintiff shot his daughter's boyfriend during an altercation in the lobby of his apartment building. The victim, Cabbagestalk, was also the father of plaintiff's grandchild. The daughter witnessed the shooting, which transpired after plaintiff and Cabbagestalk got into plaintiff's face during an argument and swung at plaintiff. When plaintiff pulled out his gun, Cabbagestalk said, "you going to pull a gun out, you better use it." When the gun was fired, plaintiff was leaning back and two feet from Cabbagestalk. The criminal court did not charge the jury on plaintiff's "justification" defense, asserted when the criminal defendant claims he had no choice but to defend himself with deadly force. Following the guilty verdict, plaintiff took up his appeals, ultimately losing in the New York Court of Appeals before filing this habeas petition in federal court.

Under New York law, the jury may consider your justification defense if the defendant reasonably believed he had to use deadly force. But you cannot have a justification charge at trial if you were the initial aggressor, i.e., if you started it all. An initial aggressor is someone who uses or threatens the imminent use of physical force. Under the case law, even when mere physical force is used against the defendant, the initial aggressor is someone who uses deadly force in the encounter. Even someone who threatens to use physical force may be the initial aggressor under state law.

After the First Department ruled in plaintiff's favor and said the criminal court should have allowed the jury to decide if he could invoke a justification defense, the New York Court of Appeals disagreed and reinstated the conviction, reasoning that plaintiff was the initial aggressor in initially drawing his gun, and further that there was no evidence that plaintiff withdrew after pulling out his gun.

The habeas petition in federal court would provide plaintiff a new trial despite the New York Court of Appeals' ruling. But plaintiff loses in the Second Circuit (Nardini, Cabranes and Kahn) because the state court ruling did not violate his due process rights in allegedly denying him the right jury charge. Habeas petitions must show the state court ruling was an unreasonable application of U.S. constitutional law. That's a tough standard to meet, but that's what Congress intended when it amended the habeas law in the 1990s. The Second Circuit finds the New York Court did not get it wrong in reviewing the evidentiary record as to who was the initial aggressor, as the record shows that plaintiff had his gun by his side during the argument. Displaying the gun was a threat to imminently use deadly force. As the New York Court of Appeals' analysis was not unreasonable, plaintiff is denied habeas relief in federal court.

Collective action against bakery is scaled back on jurisdictional grounds

This is a wage-and-hour claim in which the plaintiffs -- who distribute baked goods -- assert their employer denied proper overtime pay in violation of the Fair Labor Standards Act. The issue is whether the trial court had authority to force the employer to notify out-of-state bakery distributors of the potential collective action that plaintiffs want to pursue, which would allow the out-of-staters to opt-in to the case and therefore make it a larger and more lucrative collective action.

The case is Provenhcher v. Bimbo Foods, issued on May 4. While the district court said that Bimbo had to send the notices to distributers in New York and Connecticut, the Court of Appeals (Lynch, Lohier and Menashi) reverses in this rare interlocutory appeal, holding that the federal trial court does not have jurisdiction over out-of-state plaintiffs' FLSA claims against an out-of-state defendant, even where that defendant is properly before the court on similar claims advanced by in-state plaintiffs. Most circuits have already held as such, and the Second Circuit joins in these majority rulings.

The FLSA does not provide for nationwide service of process sufficient to confer personal jurisdiction over similar claims. The class action may only involve Vermont bakery distributors. The Supreme Court issued a ruling on this issue in Bristol Meyers Squibb v. Superior Court of California, 582 U.S. 255 (2017), though that case asserted a product liability claim against the drug company involving potential class plaintiffs from states other than California. The Supreme Court in that case said the California court lacked personal jurisdiction over the out-of-state plaintiffs' claims. 

In this case involving bakery drivers, the record does not show that Bimbo's Connecticut or New York distributors suffered FLSA violations arising from Bimbo's relationship with Vermont. The Bristol-Meyers holding is fatal to plaintiffs' argument that Bimbo's use of the same distribution protocol is similar all three states, and the fact that Bristol-Meyers concerned the Fourteenth Amendment and not the Fifth Amendment, asserted here, makes no difference. In sum, the Court of Appeals holds, "before conditionally certifying an FLSA collective action and authorizing notification of potential plaintiffs who may opt in, the district court must ensure personal jurisdiction over the defendant with regard to the claims of those to be notified." This ruling thus scales back the scope of the collective action.

Landlord's challenge to property rights verdict fails

This case went to trial in the Southern District of New York over a landlord's claim that the town's law limiting the number of properties a residential landlord can own violated the Constitution. The jury ruled against the plaintiff-landlord, and the Court of Appeals affirms.

The case is Summer Crest LLC v. Town of Monroe, a summary order issued on April 21. The Town of Monroe, in Orange County, passed law prohibiting any person or entity from owning more than three residential rental properties in the town. That makes this a property rights case under the Fourteenth Amendment. It is unclear how this case reached the jury, as you'd think a case like this might be resolved as a matter of law prior to trial. But the jury was tasked with determining if the town law caused plaintiffs any damages. The jury said no, hence this appeal.

Plaintiff argue there was something wrong with the verdict sheet, that it asked the jury to decide whether the town law was "the" proximate cause as opposed to "a" proximate cause. Plaintiffs argue that "a" proximate cause wrongly implied that its injuries could have only one proximate cause when they could have had more than one. That distinction can in fact make a difference at trial. The problem here is that plaintiffs did not object to the verdict form before it reached the jury. That means the plaintiff cannot get a new trial unless this error was "fundamental," or "so serious and flagrant that it goes to the very integrity of the trial." That is a tall order, and it rarely works on appeal.

Plaintiffs note that some New York cases support their position that "the" proximate cause is the wrong test. That may be, but we are not looking at a fundamental error, because the jury charge properly instructed the jury on the causation element. The jury charge used "a" proximate cause in laying out the legal test for the jury to follow. Under the charge, the jury was told that "a proximate cause" is "an act or omission" that "was a substantial factor in bringing about or actually causing the harm." The Court of Appeals (Sullivan, Chin and Sack) notes the charge repeatedly mentioned "a" proximate cause. Especially since plaintiffs did not object to the verdict sheet, there was no fundamental error in charging the jury. 

2d Circuit holds firm on Jean Carroll's sexual assault and defamation verdict against Trump

The sexual assault case that E. Jean Carroll brought against Donald Trump is still the subject of court activity, long after the jury found in Carroll's civil suit that Trump had assaulted her in a department store dressing room. But for now, proceedings have ended in the Second Circuit, which declines to reconsider its prior ruling that upheld the verdict.

The case is Carroll v. Trump, issued on April 29. This case went to trial before Judge Kaplan in 2024. The jury said that Trump had sexually assaulted Carroll and then defamed her when she publicly announced the incident years after it happened. The jury awarded Carroll millions of dollars in damages. After the Second Circuit upheld the verdict last year, Trump's lawyers filed a motion for rehearing and en banc review. The latter procedure would have the the entire Court, and not just a three-judge panel, consider the case. The Second Circuit has denied that motion.

The Second Circuit rarely grants motions to rehear the case or to convene en banc. That's the culture of this Court. If an outcome is good enough for the three-judge panel, then it's good enough for the Court as a whole. But lawyers frequently seek rehearing upon losing the appeal, because we always think our case is good enough for a second bite at the apple. But this case shows that even a case against the President, upon a civil judgment involving sexual assault and defamation, will not win you a new appeal. If a case like this is not going to be reheard by the Court of Appeals, no case is going to be good enough.

Most of the judges agreed not to re-hear the case; that agreement was shared among judges appointed by Presidents of both parties, including Trump. Judge Menashi writes an extensive dissent from the order denying en banc review. However, writing separately in explaining why en banc review is not appropriate, Judge Chin notes that the Court had previously denied this relief on multiple occasions in this case, and that the primary issues raised in the en banc petition this time around -- that Trump was acting within the scope of his office and employment as President when he made the defamatory statements and may therefore invoke certain protections from civil suit, and that he was also immune from suit under recent Supreme Court authority -- were both waived by Trump during this litigation. The en banc petition also challenges the $65 million punitive damages award. Judge Chin writes that, in light of the nature of the case and Carroll's injuries from the assault and defamation -- the Second Circuit has already held this award was not grossly excessive to warrant a reduction. 

Fox News wins sexual harassment appeal

This lawsuit against Fox News alleges that a Fox News personality, Ed Henry, raped and sexually harassed the plaintiff, who worked there. The district court dismissed the case, and the Court of Appeals affirms.

The case is Eckhart v. Fox News, a summary order issued on April 24. Plaintiff sues under the New York City Human Rights Law, which requires proof that the employer knew or should have known about the defendant's offensive behavior but did nothing to remedy it. If that is the case, then the employer (and its deep pockets) are on the hook. But, affirming the district court ruling, the Court of Appeals holds that plaintiff cannot meet her burden of proof.

As the Second Circuit (Carney, Robinson and Perez) sees it, plaintiff "undisputedly never told anyone at Fox about any of her sexual encounters with Henry while she was an employee. And it is undisputed that Henry never told any Fox employees about their encounters until he was interviewed after Eckhart lodged her sexual harassment complaint." Instead, Fox News learned about these allegations after plaintiff was fired, when her lawyer reported it to Fox which, that day, hired outside counsel to investigate and interview Henry. Less than a week later, after outside counsel reported their findings to Fox, Henry was fired the next day.

Plaintiff can also win the case if a jury may find that Fox News should have known about Henry's sexual harassment. The evidence is not there, the Second Circuit holds, stating:

Though Fox later learned of Henry’s other extramarital affairs and workplace conduct towards women, the record evidence shows that the only fact known to Fox prior to the February 2017 rape was that Henry had a consensual extramarital affair with a “stripper in Las Vegas.” Following that revelation, Fox suspended Henry, took him off the air for several months, reduced his annual pay, and removed him from the role of Chief White House Correspondent. While he was suspended, Henry went to a sexual rehabilitation therapy and treatment program suggested by Fox. 

Plaintiff's response to this holding is as follows: Fox must have known about Henry's improper sexual workplace conduct that later surfaced because it would be implausible that Fox News would send him to sex addiction therapy on the basis of a single consensual affair. There is some logic to this argument, and I wonder if a jury might buy it. But the Court of Appeals holds this argument is speculative and is not rooted in any permissible inferences.

New York strikes down Long Island school districts' transgender bathroom policies

A school district on Long Island is litigating the culture wars. A few years ago, it challenged New York's directive that districts dispense with Native American mascots. This time around, the district challenges New York's directive that schools allow transgender students to use the bathrooms that align with their gender identity. This challenge fails, and the State Department of Education rules in favor of transgender students.

The case is Jane and John Doe v. Board of Education of Massapequa Union Free School District, decided by the State Education Department on April 20. The decision also addresses the Locust Valley School District's identical bathroom policy. Disclosure: I graduated from this district many years ago and helped litigate the Bostock ruling that went before the Supreme Court. I have nothing to do with this case.

The Doe's are the parents of a transgender student. They challenge a school board resolution stating that "all students shall be required to use facilities -- including restrooms and locker rooms -- that correspond with the student's sex as defined under Title IX and federal law." Title IX is the law that prohibits sex discrimination in schools.While the Supreme Court in Bostock v. Clayton County (2020) held that discrimination against transgender status violates Title VII -- the employment discrimination law -- the school district here must be interpreting Title IX to allow for this exclusion from the bathroom. "As a result, the student was no longer permitted to use the locker room or restroom that aligned with her gender identity." Hence, this appeal to the Commissioner of Education. (Similar litigation, initiated by the Massapequa school district, was filed in federal court last year, and that case is pending).

What dooms the district's position in this case is that it adopted the resolution without providing the public with advance notice during regular meetings of the board. This procedure, baked into the district's own written procedure, allows the public to provide input into the resolution. While the district argues that the resolution was not a change in policy, the Commission is not buying that argument, noting that it styled the policy itself as an amendment to district policy. 

Apart from that procedural violation, the Commissioner rejects the policies on the merits. The Commissioner notes that school district resolutions that conflict with state regulations are void. That's the case here. The New York Human Rights Law and related sex discrimination statutes bar school districts from discriminating against students based on their actual or perceived sex and gender identity or expression. State law further states that these provisions are violated when districts deny access to school facilities such as bathrooms, changing rooms, and locker rooms based on a student's actual or perceived gender, which includes gender identity or expression. Under these principles, the bathroom policies are stricken.

The districts have another argument: that they have made gender-neutral bathrooms available for transgender students. Sort of like a "separate but equal." But, the Commissioner holds, the Human Rights Law and related state laws do not provide for a "reasonable accommodation" exception. "While students may elect to use gender-neutral facilities, no student may be compelled to do so because of their gender identity. Therefore, the offering of such facilities does not excuse [the districts'] discriminatory resolutions."

In the end, the Commissioner writes, the policies here "targeted a discrete group of people who have become increasingly vilified by irresponsible adults." As the board members in these two districts "disregard[ed] State law to deprive students of the dignity to which they are entitled," they did not live up to their oaths of office, holds the Commissioner.

 

 

$1 verdict on excessive force claim is sustained on appeal

This false arrest case arises from a stolen jacket. The victim told the police that plaintiff was the culprit. The road to federal trial was complicated; while the criminal court found plaintiff guilty, that conviction was overturned on appeal. Plaintiff proceeded with his excessive force claim at trial after the district court dismissed the malicious prosecution claim on summary judgment. Plaintiff, however, only recovered $1 on his excessive force claim. This appeal seeks to reinstate the malicious prosecution claim and a retrial on the excessive force claim.

The case is Banyan v. Sikorski, a summary order issued on April 21. The most interesting issue relates to the excessive force claim. The jury found the police used excessive force in arresting plaintiff, but it only awarded him a dollar. Not much of a victory. Hence, this appeal. The argument is that the trial court should not have allowed the jury to see the post-arrest video, where plaintiff, now at the police station, was screaming at the police and acting violently. This video could not have endeared plaintiff to the jury; plaintiff argued as such on appeal, stating that the video "invited jurors to find against Banyan because they disapproved of his arguably threatening, belligerent behavior at the precinct."

Plaintiff argues that the video was improper "propensity" evidence intended to show that plaintiff is prone to outbursts and must have resisted the arrest, causing the police to use excessive force. But the Court of Appeals (Wesley, Park and Coombe [D.J.]) holds that the video was admissible to show plaintiff's "condition after the incident," relevant to assess the impact of any force that was used on him and any injuries that he suffered. This ruling was not an abuse of discretion, the Court of Appeals holds. Plaintiff further argues the video was inadmissible because its relevant was greatly outweighed by its prejudicial effect on the jury. You can make such an argument on the basis that the harm flowing from the evidence outweighs the good. But the trial court instructed the jury that the video was only relevant for the purpose noted above, and we presume that juries follow the trial court's instructions on how to evaluate evidence. This means the one dollar verdict stands, as plaintiff is not entitled to a new trial.

On the malicious prosecution claims, they were properly dismissed on summary judgment, the Second Circuit holds, because the grand jury indicted him, creating a presumption that the jury had probable cause to make the arrest for assaulting the police and resisting arrest. 

If you want to use a taser, join the police department

These plaintiffs challenge a New York City law that makes it illegal to possess electronic weapons, such as stun guns and tasers. Cases like this are happening because the Supreme Court held in 2008 that the Second Amendment provides for an individual right of gun ownership, though the Court in 2022 clarified that ruling in stating that some gun laws are legal if they regulate certain weapons in a manner resembling the gun laws when the Constitution was enacted in the eighteenth century. 

The case is Calce v. Tisch, a summary order issued on April 13. The Second Amendment Foundation is among the plaintiffs. This case actually implicates a different component of the 2022 ruling, known as the Bruen case. Our issue is whether the weapons in issue are in "common use today for self-defense and whether the conduct at issue implicates the right to armed self-defense." This may be an easy issue for run o' the mill guns and other firearms, but what about electronic weapons and tasers? Are they in common use today? The plaintiffs have not proven their case.

The Court of Appeals (Parker, Merriam and Lohier) says plaintiffs do not have a case. On the summary judgment motion, they were supposed to introduce admissible evidence to show these weapons are in common use. But, says the Court of Appeals, "Instead of introducing the required evidence before the trial court, Plaintiffs cited a slew of non-binding cases and a concurrence by Justice Alito, which cites a Michigan Court of Appeals decision relying on a 2009 law review article, for the proposition that 'stun guns are common.'" 

But, the Second Circuit states, "for the first time on appeal, Plaintiffs cite additional materials that were not introduced below, including newspaper articles from the 1980s, a New York Post article, and a Congressional Research Service Report that references a large increase in civilian purchases of stun guns from 2019 to 2020. They failed to introduce these materials in the district court and we decline to consider them now. The materials they do cite are miscellaneous bits and pieces insufficient to establish that stun guns and tasers are in common use for lawful purposes."

Contract-killer's confession is admissible at trial

Contract-killing does not just happen in Hollywood. We have real-life contract killers, too. In this case, the defendant was convicted of a murder-for-hire but challenges his conviction on the basis that he made incriminating comments in violation of his Miranda rights. The Court of Appeals does not see it that way, and the conviction stands.

The case is United States v. Pence, issued on April 10. After Plaintiff and his wife began caring for foster children, they took in five children from another couple. For a while the families got a long, but the relationship deteriorated when the family wanted their children back. According to the Court of Appeals Cabranes, Chin and Robinson), Pence began communicating with a hitman and arranged for the family's killing so that it would look like an accident. The killing would cost approximately $16,000.

After tracing the internet contacts with the contract killers to the Pence household, the FBI got a search warrant for the Pence home. When the FBI arrived, Pence agreed to speak with them, though the FBI allowed Pence to walk around the house for a moment to grab his shoes and he walked himself to the FBI vehicle, where a recording device captured Pence confessed to the murder-for-hire. At the time of the confession, Pence was told he was not under arrest. The officers then read Pence his Miranda rights. 

Pence argues that his confession was unlawful because he was officially in police custody but made incriminating statements prior to the Miranda rights were administered. If so, then the confession is tainted and the FBI will have to prove Pence's involvement in the attempted murder through some other way. But that will not be necessary, the  Court of Appeals holds, because Pence was not really in police custody when he spilled the beans. We analyze this issue through a totality of the circumstances test, considering in part whether a reasonable person would have felt free to leave when the police were present.

On this record, Pence was not in custody because a reasonable person in his position would not have believed he was not free to leave, or that he was at the mercy of the FBI agents. He entered the FBI vehicle under his own free will, outside his home while his family went about their day. He was not handcuffed and agreed to speak with the agents, who did not point their guns at him. No one yelled at Pence. While the agents outnumbered Pence 2:1 and they questioned him for 1.5 hours, that is not enough to show he did not reasonably believe he could not walk away. While the agents did present Pence with some evidence of his guilt, and that factor certainly counts for something in this equation, that factor is not dispositive, as the agents did not threaten to arrest him. Nor is it dispositive that the agents came to the house with equipment and weapons, making Pence feel like "Armageddon" was at the front door. In the end, the Court of Appeals says, Pence confessed to the crime after the FBI told him he was not under arrest and was under no obligation to speak with them.

Rolling Stone not liable for allegedly defamatory statements

This case is a good example of how difficult it is to win a defamation case. The plaintiff sued Rolling Stone magazine for publishing an article that said he was prone to fits of rage, tried to start a fire in the family home, gave someone "a joint laced with a number of drugs," and encouraged someone to drive his vehicle into a crowd of people. None of these statements placed plaintiff in a positive light. But none of them are defamatory, either, according to the Court of Appeals.

The case is McGillvary v. Rolling Stone, LLC, a summary order issued on April 8. the article was called "Dark Tales:  A hatchet wielding hitchhiker went viral. Then he killed someone." The article "described [plaintiff's] involvement in thwarting a high-profile attack in 2013 (for which he was cleared of wrongdoing) and in committing a later unrelated murder for which he was convicted and is now serving a fifty-seven year sentence." 

Publications have a ton of defenses to any defamation claim. The truth is one defense. Another defense is that the objectionable statement is protected opinion. Or that the statement, in context, is not really defamatory. Or that the statement was not made with actual malice or reckless disregard as to falsity. 

The "fits of rage" statement is opinion, not presented as a factual statement, as the article "signaled to readers that it was relaying the opinions of those who knew McGillvary, not conveying a historical fact about McGillvary's personality or behavior." 

Another statement in the article said that plaintiff "tried to start a fire in the family home and was subsequently sent into foster care at the age of thirteen." But plaintiff admitted that he tried to light a sleeping bag on fire when he was four years old. While plaintiff claims the fire-starter statement suggests he tried to burn down the house at 13 years of age, "the 'fire-starter' statement contains no such temporal limitation" and "merely states that he 'tried to start a fire in the family home and was subsequently sent into foster care at the age of 13." In context, the fire-starter statement does not suggest he tried to start a fire in the family home when he was 13. 

What about the "laced-joint" and "ghosts" statements? They are not defamatory, either. Plaintiff admitted in this case that he is a "limited-purpose public figure with respect to his role" in the hitchhiking incident in which a motorist drove into a group of bystanders. The article says that plaintiff gave the driver a joint laced with drugs and that he told the driver "they were both ghosts" and could drive through a truck without anyone seeing them. But as a limited public figure, plaintiff has to show the statements were made with actual malice, or with reckless disregard of the statement's falsity. Analyzing the article carefully, the Court of Appeals (Wesley, Sullivan and Menashi) finds there is no reasonable inference that Rolling Stone published these statements with actual malice.

Inmates have due process rights, too

When the jail charges the inmate with misconduct, and the charges may lead to solitary confinement or some other punishment, the jail has to follow due process to ensure the inmates receive a fair hearing. But a fair hearing is not like the hearings we see outside the prison context, i.e., in public employment. I cannot recall the last time an inmate won an appeal like this in the Second Circuit, but the Court of Appeals holds the plaintiff was denied due process. 

The case is Vidal v. Venettozzi, issued on April 1. The inmate was incarcerated at Green Haven Correctional Facility. The jail charged him with punching a correctional officer in a dispute over when he could bring his legal materials into the A-Block. The jail said that plaintiff then punched a second correction officer who came to assist the first officer. But even if plaintiff is an inmate, the Supreme Court says he is still entitled to defend himself at the disciplinary hearing. 

This hearing lasted nine days. Under the rules, the jail has to assign someone to help the inmate gather witnesses for the hearing. This is a security measure. The inmate cannot just walk through the jail obtaining witness statements and commitments from other inmates to testify. Plaintiff claims he was not permitted to get and introduce certain documentary evidence, including the A-Block logbook. While the assigned evidence-gatherer, Carroll, did not obtain any witness statements, he told plaintiff these witnesses had agreed to testify. Following the hearing, he was found guilty to sentenced to 270 of confinement in the special housing unit, what we call SHU, where he has limited free movement or access to recreation, daily showers, use of the telephone, exercise equipment, social activities., regular visits without restrictions, access to the law library, and other benefits or access to programs at the jail. Plaintiff ultimately served 258 days in SHU. There is an assumption that the plaintiff did not receive a fair hearing, so the question is whether the due process clause required that the jail provide him one. The issue is whether plaintiff had a liberty interest in avoiding solitary confinement.

 

Inmates have a liberty interest under the due process clause to be free from disciplinary segregation without due process. But that right only kicks in if the inmate is subjected to an "atypical and significant hardship" at the jail, a legal standard devised by the Supreme Court in Sandin v. Conner (1995). One prior case holds that 305 days for disciplinary SHU qualifies as an aytpical and significant hardship, but that lesser amounts for administrative confinement may also qualify. The Court of Appeals holds that "the duration of Vidal's disciplinary segregation alone was an aytpical and significant hardship in relation to the ordinary incidents of prison life and thus implicates a protected liberty interest." Other cases hold that lengthy solitary confinement can cause significant psychological hardship, even physical hardship. The Court of Appeals (Robinson and Merriam) rules that plaintiff was entitled to due process. The case returns to the district court to determine if the individual defendant can invoke qualified immunity. 

Speculation will not get you a trial in a discrimination case

This plaintiff asserts she was denied commissions while working at a car dealership because she was pregnant. The argument was that her manager was delaying her commissions because she lost access to a computer program that allowed her to quickly process credit checks for prospective customers, forcing her to rely on her sales manager to process the checks on her behalf, but he intentionally delayed doing so, costing her customers.

The case is Stidhum v. 161-10 Hillside Auto, a summary order issued on March 18. The Court of Appeals holds that plaintiff does not have a discrimination case. While the trial court held that plaintiff did not actually sustain an adverse action even under the Supreme Court's recent case, Muldrow v. City of St. Louis, which relaxed the adverse action standards under Title VII, the Court of Appeals sustains summary judgment against her on different grounds: plaintiff cannot prove she was treated any differently than her male coworkers.

The Second Circuit (Calabresi, Nathan and Vargas [D.J.]) reiterates that one way to prove discrimination is by comparing your adverse treatment to the male workers. If they enjoyed favorable treatment, then you can win the case on the basis that you were singled out because of sex. But the record shows that the manager with access to the credit check software took vacation and no one else at the dealership had the password. This meant that plaintiff "was placed in the same position as every other salesperson at the dealership." Everyone suffered a delay in recovering their commissions. Plaintiff tries to get around this by arguing that the male salespeople sold more cars at this time, which can only mean they must have experienced shorter wait times for their credit checks. This may be true, but you need evidence to prove it. That's what summary judgment motions are all about: what evidence do you have that can justify a verdict at trial? Plaintiff could only speculate that "their customers were taken or tended to a little more promptly." That kind of speculation will not be enough in opposing a summary judgment motion.

Plaintiff argued that since the dealership destroyed the weekly sales records, thus preventing her from proving her case, that kind of spoliation argument will not work here because the records were destroyed prior to plaintiff's filing this lawsuit. There was therefore no bad faith in destroying the records. Had plaintiff been able to prove such bad faith, she might have gotten an "adverse inference" in her favor on this point.

Some guidance on authenticating medical records at trial

What we learn from this case is that evidentiary rulings at trial are difficult to challenge on appeal. The standard of appellate review is “abuse of discretion,” which is deferential to the trial court. While you can get a new trial based on the district court’s evidentiary rulings, that is more true in theory than in practice. Few parties win a new trial based on an objectionable evidentiary ruling.

The case is Penzo v. Consolidated Edison of New York, a summary order issue on April 2. This disability discrimination case went to trial in the Southern District of New York. The plaintiff prevailed at trial, as the jury found she was terminated from her position in retaliation for engaging in protected activity under the New York City Human Rights Law. The jury awarded approximately $200,000 in damages for lost wages, but no damages for pain and suffering. The argument on appeal was that the trial court erred in disallowing plaintiff from introducing her medical records that would have proved she sustained damages for pain and suffering resulting from the retaliation.

The trial court declined to admit the medical records because they were not authenticated. The trial judge has to ensure the medical records are true and accurate, that is, they are authentic. Otherwise, the records are inadmissible hearsay. The way to do that is to have the doctor or someone affiliated with the medical practice testify at trial that the records are authentic. Or you can get a written certification that the records are real. But, as the Court of Appeals states, “Penzo did neither of those things.”

Plaintiff argues on appeal that, as the patient, she can authenticate the medical records: that she could have laid the necessary foundation for the documents, and/or the trial court should accepted her belated certifications that the documents were authentic. But the Court of Appeals (Kearse, Lee and Komitee [D.J.]) disagrees. Parties cannot authenticate their own medical records. Trial courts have said as such, and the Court of Appeals – which I guess has never squarely ruled this way – cites those district court cases to support its holding in this case. We don’t see too many district court cases cited in appellate rulings, but the Second Circuit will do so when it thinks the rulings make sense and there is nothing at the appellate level to that effect. The district court rulings are logical to the Court of Appeals because “authentic medical records are not created by the patients themselves, nor do they maintain them.” Plaintiffs are not in a position to tell the jury that the records are real.

What about the second argument: that the plaintiff belatedly but nonetheless offered a written certification that the records are authentic? The Court of Appeals says the trial court did not abuse its discretion in rejecting the late certifications. “[A] district court is not required to permit a plaintiff to present evidence in clear violation of the Rules of Evidence. And the relevant evidentiary rule clearly requires that certifications must be provided to the opposing trial ‘before the trial." Since plaintiff “did not submit her certifications until trial was well underway . . . the district court did not abuse its discretion by declining  to accept those certifications and excluding the evidence in question.”

Plaintiffs cannot sue Sean Combs anonymously

These plaintiffs sued Sean "Puffy" Combs, the famous hip-hop artist, claiming various acts of sexual abuse dating to 1991-1997. These claims were facilitated by a recent law in New York that reopened the statutes of limitation for otherwise stale sex abuse claims. But this appeal does not determine whether Combs is liable. Rather, it addresses whether plaintiffs may litigate their claims under pseudonyms, i.e., Jane Doe. They cannot.

The case is Doe v. Combs, a summary order issued on March 17. The district court said the plaintiffs have to litigate these cases under their real names, not Jane Doe aliases. The Court of Appeals (Park, Nardini and Kahn) affirms. The federal rules assume that plaintiffs must use their real names, but there are exceptions for John Doe pseudonyms if the plaintiffs can meet certain criterion, including whether the cases involve highly sensitive subject matter, whether identifying themselves poses a risk of retaliation to that party or to innocent non-parties, whether the defendant will suffer any prejudice from anonymity, etc. The Court of Appeals articulates a 10-part test, making this inquiry unpredictable.

While plaintiffs raise claims involving a highly sensitive and personal nature, they cannot prove any risk of harm in using their real names, such as possible retaliation, and they cannot show any mental harm if they cannot proceed as Jane Does. Instead, they assert threats of retaliation made to other litigants, but not themselves, and while one plaintiff said that Combs threatened her with violence when he assaulted her, that was more than three decades ago, the Court notes, and she does not identify any present threat of physical harm. Do you see how hard it is to proceed under a pseudonym?

Another reason the plaintiffs lose this appeal is that if they proceed anonymously, Combs would be highly prejudiced "because of likely asymmetries in fact-gathering." Courts have held that "concealing the name of a party could deprive a litigant and the court of the chance that a yet unknown witness would . . . upon learning of the case, know to step forward with valuable information about the events or the credibility of witnesses." The loss of such witnesses would be particularly prejudicial in this case because the events of this case took place more than 30 years ago, and the case would "be difficult to defend even with information about Plaintiffs' identities." In other words, while the defendants in this case do know who the plaintiffs are, the public does not, and the public might have evidence relevant to the case. 

Inmate wins sexual abuse appeal against correction officer

The plaintiff in this case alleges that, while he was a pre-trial detainee in the Connecticut system, a correction officer sexually assaulted him. Plaintiff sues under the Fourteenth Amendment. The trial court said that, assuming the plaintiff's allegations are true, the defendant officer cannot invoke qualified immunity, that is, avoid litigation because he did not violate clearly-established law. The officer appeals from that ruling and the Court of Appeals affirms, sending this case to trial to resolve disputed factual issues.

The case is Russell v. Scott, issued on March 19. While plaintiff says the officer grabbed his genitals under the false pretense of searching for contraband, the officer says this never happened. In order to decide this case, the Second Circuit (Bianco, Perez and Merriam) summarizes the rules guiding these cases. Since plaintiff was not yet convicted of anything and was still a pre-trial detainee, he enjoys more rights than the convicts. His case arises under the Fourteenth Amendment -- which protects pretrial detainees -- and not the Eight Amendment -- which regulates treatment of inmates who were sentenced for committing crimes.

Under the Fourteenth Amendment, the inmate cannot be punished in any manner. As this case is comparable to an excessive force claim, the Second Circuit considers when the inmate was punished without any legitimate penological reason, even if that punishment was not the cruel and unusual punishment prohibited under the Eighth Amendment. One of the leading cases in this area -- protecting the rights of pretrial detainees -- is Darnell v. Piniero, 849 F.3d 17 (2d Cir. 2017), a case I briefed 10 years ago.

The lengthy discussion in this case on how to analyze plaintiff's claim involving sexual abuse under the Fourteenth Amendment will make this the leading case on this issue. The result is that if the jury believes the plaintiff's version of events, he can win the case under the Fourteenth Amendment. The jury can find there was no reason for defendant to grab plaintiff by the genitals, invading his privacy and bodily integrity and causing pain that lasted for quite some time. 

That brings us to qualified immunity. Even if the court says that plaintiff's rights may have been violated in this case, that does not mean it was apparent that the officer was violating the Constitution. Was it clearly-established, through case law, that the officer was violating the Fourteenth Amendment? It is not enough to say that plaintiff has the right to be free from unjustified punishment. The qualified immunity inquiry requires the court to frame the issue more narrowly, taking into account the context of the case.

Not only was it clearly established at the time of this case that the Fourteenth Amendment forbids objectively unreasonable treatment of pretrial detainees, but cases have already held that sexual contact with inmates -- without any penological purpose but instead to gratify the officer's desire or to humiliate the inmate-- violates the Eighth Amendment. Cases also hold that plaintiffs suing under the Fourteenth Amendment can win the case even without showing the officer was acting to gratify himself or to humiliate the inmate. This means that, if the jury finds he grabbed plaintiff in this manner, the officer in this case was on notice that he was violating the Fourteenth Amendment. This case will thus proceed to trial to resolve the disputed issue of whether the defendant grabbed plaintiff this way. 

Clean up the olive oil spill in aisle 3 before someone brings a lawsuit!

This case is a routine slip-and-fall claim against Wal-Mart Stores, where someone slipped on milk (or something in the milk aisle) and sued the store because it was on constructive notice that a dangerous condition could have led to a customer's injury. The district court threw out the case, but the Court of Appeals brings it back, and it will proceed to trial unless the parties settle.

The case is Marquez v. Was-Mart Stores, Inc., a summary order issued on March 17. Not all hazardous conditions at the supermarket will subject the store to liability. The plaintiff has to show the condition was in place long enough for the store to be aware of it, or that store employees should have known about it, such that the failure to timely fix the problem was the foreseeable result of someone's injury.

Anyone who ever worked in a supermarket will tell you that slippery and other dangerous conditions are commonplace. The store has a duty to clean up the spill quickly, lest someone slip and fall and file a lawsuit. I am sure the supermarket managers are trained by a risk-management expert who advises that there are lawsuits to be had when no one feels like cleaning up the mayonnaise or olive oil spill and employees instead walk right past it -- or even over it -- pretending not to see it because it's too much of a hassle to get the mop from the back room to wipe up the spill and, besides, my break starts in 15 minutes and I don't have time for it and someone else will take care of it and they don't pay me enough to do this anyway.

In this case, what the Court of Appeals (Livingston, Sack and Lohier) calls "the liquid on the milk aisle floor" -- could have been milk or yogurt or pudding or anything slippery -- was visible long enough for the jury to find against the store. Cases hold that "as little as five minutes can be sufficient for a defendant to discover and remedy a hazard, depending on the circumstances." Here, video evidence -- those cameras are all over the place at the supermarket, just look up at the ceiling -- shows customers looking at the spill and gesturing to other customers to stay away from it, and "a young girl may be seen sliding in the vicinity of the liquid." This allows the jury to find the liquid was on the floor long enough for workers to clean it up pronto. It will all be up to the jury.

Circuit Court certifies sex-abuse issue to the New York State Court of Appeals

The Me-Too movement led to new laws allowing sex abuse victims to sue their abusers long after the statute of limitations had expired. In New York, the Legislature passed the Child Victims Act. But years earlier, in New York City, the City Council had already enacted the Victims of Gender-Motivated Violence Prevention Act (VGMVPA). But the laws might conflict with each other, creating different time-frames to open up old cases. What do we do about this?

The case is Parker v. Alexander, issued on March 23. In 2000, New York City enacted the VGMVPA, which allows sex abuse/violence victims to sue their abusers within a seven-year statute of limitations. Under the state law (CVA) enacted in 2019, a one-year revival period was established, allowing minors to revive stale claims within that limited window. A year later, the Legislature extended that time period by another year. As the Court of Appeals puts it, "the CVA's revival period thus covers a period that is substantially earlier than the period of revival for claims under the VGMVPL." In 2022, since the COVID pandemic reduced in-person services and prevented victims from filing their lawsuits, the New York City Council amended that law to provide an additional two years to bring their lawsuits.

What it means is that the City law is more generous than the State law for reviving old claims. That distinction affects this case, in which a woman sues the Alexander brothers for alleged sex abuse under the City law but would be unable to do so under the State law. The defendants argue that the State law preempts the City law, as the State is superior to the City when it comes to setting the rules and statutes of limitations. If the defendants are right, then the City law, at least as to this case, is a nullity. 

The Second Circuit (Lohier, Cabranes and Jacobs) notes that both sides have powerful arguments for and against their positions. Both sets of laws regulate slightly different conduct. The First Department said in 2021 that the statute of limitations under the City law was not preempted by State law because the City law focuses on gender-motivated violence, and the State law focuses on a narrower class of cases: certain sexual offenses.

The problem is the New York appellate courts have not yet resolved this dispute. Since this puzzle raises state law issues, the Second Circuit will not definitively resolve such untested issues without giving its New York State counterpart, the Court of Appeals, an opportunity to weigh in on this matter through an advisory opinion that will then inform the Second Circuit's ruling in this case. So the Second Circuit has certified this case to the New York Court of Appeals for that purpose. If the State Court of Appeals decides to take on this issue (and it probably will), it will have separate briefing and oral argument and then issue a ruling, probably sometime in 2027. At that point, its federal counterpart will return to this case.

Protester loses excessive force on qualified immunity grounds

You may not be aware of this, but the Supreme Court on a regular basis summarily reverses rulings from around the country holding that a jury may find that police officers used excessive force in arresting people. These decisions are handed down without full briefing or oral argument on the basis that the officers are entitled to qualified immunity: that the factual record proves the officers acted reasonably at the time because no prior court rulings put the officers on notice that they were violating the Fourth Amendment. That pattern continues with a case from Vermont, where a protester was physically injured by the police after she refused a disbursal order.

The case is Zorn v. Linton, issued on March 21. Plaintiff was protesting the Governor's inauguration in Vermont; they were demanding universal health care. It was a passive-protest, in that the protesters did not fight with the police but they refused to move away when the police gave that directive. The police gave her a warning (threatening "pain compliance"), but plaintiff did not listen. So they lifted her up by her underarm after placing pressure on her wrist. This sequence caused plaintiff to suffer physical injuries.

Although the Second Circuit held the jury may find the officers used excessive force and that it was too early to grant the officers with qualified immunity, the Supreme Court, by a 6-3 vote, reverses, granting the officers immunity. Officers get immunity if they acted reasonably under the circumstances. This is one of the most complicated areas of constitutional law. Unless a case is directly on point, or quite close to the facts, then the officers are not on constructive notice that their actions are violating the Constitution. What it means for this case is as follows: while the Second Circuit denied immunity in another passive-protest case, Amnesty America v. West Hartford, 361 F.3d 113 (2d Cir. 2004), in that case, the Supreme Court says, the officers lost immunity because they inflicted physical harm without first warning the anti-abortion protesters. The Zorn case is different because the officers did give a warning. Immunity attaches because the Second Circuit has never held that the officers can be liable for excessive force even after they warned the protesters they will use "pain compliance" to break up the protest.

This immunity analysis, unique to constitutional claims for damages, essentially requires the plaintiff to identify case that is almost on all-fours with their case in order to avoid dismissal. It kills off a lot of good cases. In dissent Justice Sotomayor, writing on behalf of Justices Kagan and Jackson, says the Court majority is both misreading Amnesty America (there was a warning in that case) and narrowly applying the qualified immunity doctrine to knock out cases like this, a trend that has persisted at the Supreme Court quite some time.

A few observations about qualified immunity. The requirement that plaintiffs identify a case on point to avoid immunity is a judge-made rule that assumes (1) police officers will go bankrupt if they have to defend and possibly lose these cases where the law was not clearly-established at the time of the constitutional violation and (2) police officers are aware of case law developments in their jurisdiction and then apply that knowledge in the course of their duties. Neither factual predicate is true. Nearly all officers are indemnified by their municipalities, and police officers are not reading case law in their spare time. 

Another observation: the Court in this case drops a footnote that assumes the body of law in the Second Circuit is relevant in determining whether the law was clearly-established. The Supreme Court has never actually told us whether that is true or whether we can only look to Supreme Court case law in solving the clearly-established puzzle. The Second Circuit -- most if not all circuits, really -- look to their own body of cases for this inquiry. But nothing stops the Supreme Court from limiting the pool of cases to Supreme Court authority. If that happens, say goodbye to many (perhaps not all) damages claims under the Constitution, as there are far fewer Supreme Court cases on civil rights than the Circuit Courts have to offer, making it much harder to find a case sufficiently on point to avoid qualified immunity.