Constitutional challenge to NYS election law is moot

 

The Second Circuit has dismissed as moot an appeal challenging New York's independent-expenditure disclosure requirements as applied to political advertisements criticizing socialism and the Democratic Socialists of America

The case is American Future Fund v. New York State Board of Elections, issued on November 6.  American Future Fund (AFF) wanted to broadcast advertisements criticizing socialism and the DSA. New York's independent-expenditure law, Election Law § 14-107, requires organizations making certain political expenditures to register with the Board of Elections and regularly disclose specified information. The statute applies to expenditures advocating for or against a "clearly identified candidate." New York regulations identify various factors for determining whether a communication advocates for or against a candidate.

The State argued that AFF's advertisements referencing the DSA could trigger the disclosure requirements because Zohran Mamdani, the only citywide candidate affiliated with the DSA in the 2025 mayoral election, was an identifiable candidate. Mamdani, as you know, won that election and is now the Mayor,

AFF brought a pre-enforcement First Amendment challenge, arguing that the regulations were unconstitutionally vague and improperly swept issue advocacy into the definition of independent expenditures. It sought both declaratory and permanent injunctive relief. It also moved for a preliminary injunction allowing it to broadcast the advertisements while the litigation proceeded.

While the district court denied preliminary relief, finding that AFF had not demonstrated a  likelihood of success on its constitutional claims. AFF appealed. The Second Circuit (Sullivan and Wesley, with Menashi in dissent) dismissed the appeal as moot. The majority says the injury asserted in the preliminary injunction motion concerned AFF's ability to broadcast its advertisements in the weeks preceding the 2025 mayoral election. Because that election had passed, the court could no longer provide effective relief from the particular injury underlying the motion.

The court also rejected the exception for controversies capable of repetition yet evading review. That principle allows you to challenge a rule or regulation where the timeline proceeds too quickly and the courts cannot rule quickly enough to fully resolve the case. Although election-related disputes may qualify for that exception, the majority noted that AFF's lawsuit remains pending in the district court, which can still adjudicate the constitutional challenges, and any final judgment could be reviewed on appeal.

In dissent, Judge Menashi says the appeal is not moot because AFF sought permission to broadcast its advertisements throughout the pendency of the litigation, not merely before the 2025 election. The advertisements did not identify any particular candidate or election and could be broadcast without modification in future election cycles. Alternatively, Judge Menashi concludes the controversy qualified as capable of repetition yet evading review. Election-related restrictions frequently arise too close to an election to permit complete judicial review, and AFF reasonably expected to encounter the same enforcement threat again.

The dissent also reached the First Amendment merits, concluding that AFF was likely to win because its advertisements constituted issue advocacy rather than express advocacy concerning a particular candidate. The Supreme Court has permitted disclosure requirements for communications expressly advocating the election or defeat of clearly identified candidates, but has not approved comparable regulation of communications merely addressing political issues.

2d Department strikes down Nassau County law on transgender athletes

The culture wars continue to rage on Long Island. In Nassau County, the legislature passed a law prohibiting transgender women from playing team sports with those who were born as women. The New York Civil Liberties Union sued Nassau County, arguing that the law conflicts with the state law prohibition against discrimination on the basis of transgender status.

The case is Long Island Roller Rebels v. County of Nassau, issued by the Second Department on November 4. The Appellate Division strikes down the local law and says that state law guides this case. The plaintiff wins.

As background, the Roller Rebels are an adult womens' roller derby league in Nassau County that includes transgender women, intersex women, and gender-expansive women. They seek to use Nassau County facilities in playing other roller derby teams but were barred from doing so because the league has at least three transgender players. 

The case reached the Appellate Division after a State Supreme Court Justice ruled last year the local law was legal. The lower court said that biological males, regardless of transitioning, have greater athleticism and speed, strength, muscle mass, stronger hearts and greater bone density, and the local law aims to provide a safe environment for biological females. The court added that allowing transgender women to participate might be dangerous and create liability costs for the county. Since federal regulations allow schools to maintain separate teams for women and men in contact sports like roller derby. The court added that Title IX -- the sex discrimination law guiding sports -- prohibits biological men from playing sports with biological women, and that the county law is modeled after a law in Florida. On this logic, federal law preempts the state law on this issue, making the county prohibition against transgender women playing in the roller derby league legal. The lower court added that "The County does not deny transgender individuals access to the Athletic facilities."

 The Second Department rejects this reasoning in full and holds that the County law conflicts with State law prohibiting discrimination on the basis of transgender status. I do not see an analysis of federal statutes such as Title XI in the Appellate Division ruling. Unless the New York Court of Appeals takes on this case, this ruling means that transgender roller derby players may use Nassau County facilities for this competition.

 

Inmate wins disability discrimination appeal

You know, inmates have rights, too. This one filed a lawsuit over the jail's failure to accommodate his disability, among other violations. Much of the case is gone, but the Second Circuit revives his claim under the Americans with Disabilities Act. 

The case is Long v. Annucci, a summary order issued on November 3. Long, an inmate at Cape Vincent Correctional Facility, has severe osteoarthritis, degenerative changes to his lower back, and plantar fasciitis. His medical conditions caused chronic pain and difficulty walking. A prison doctor recommended orthopedic treatment and custom footwear, but Dr. David Dinello, a regional medical director, repeatedly deferred those recommendations, suggesting physical therapy and other less advanced treatments instead.

Long was required to complete Alcohol and Substance Abuse Treatment (ASAT) and Aggression Replacement Treatment (ART) programs to qualify for early release. But because of his medical problems, he was initially exempted from programming. In June 2015, he was transferred to the ASAT dormitory, where he allegedly had to walk long distances to obtain meals and medication.

In February 2016, Long requested reasonable accommodations, including specialized boots, orthotics, a shoe lift, and shorter walking distances to prison facilities and services. The following day, DOCCS transferred him to the infirmary, where he received certain mobility accommodations, including grab bars and accessible bathroom facilities. But prison officials denied his requests for specialized footwear and orthotics, which Long said were needed to participate in prison programming.

Long sued under the Eighth Amendment, the ADA, and the Rehabilitation Act. The district court granted summary judgment to defendants. On the Eighth Amendment claims, the Court of Appeals (Lee, Wesley and Jacobs) rejects Long's deliberate indifference claim against Dr. Dinello. A prisoner asserting inadequate medical care must establish both an objectively serious medical need and subjective deliberate indifference, requiring at least culpable recklessness. The Court said Long failed to establish the subjective component. Long did not dispute that Dinello believed several of his treatment decisions were medically justified. And the doctor who recommended orthopedic treatment acknowledged that physical therapy was an acceptable treatment and that Long received standard and accepted care throughout his incarceration.

Nor does Long have any basis for the conditions-of-confinement claims against three prison officials. Long cannot prove they were personally involved in the violation under Tangreti v. Bachmann, a Second Circuit ruling from a few years ago that, interpreting the famous Iqbal case, says you have to identify the wrongdoers by name in the lawsuit.. Two counselors established that they had no authority over Long's placement in the ASAT dormitory or his removal from it. The superintendent's involvement was limited to investigating grievances and affirming grievance committee decisions.

On his claims under the ADA and Rehabilitation Act, the district court misapplied the reasonable-accommodation framework. An accommodation must provide effective access to prison programs and activities. Although an accommodation need not be perfect or the inmate's preferred choice, effectiveness is essential. While the trial court said DOCCS had reasonably accommodated Long by transferring him to the infirmary. that only addressed some of plaintiff's needs. Long said that without specialized footwear, he could not meaningfully participate in early-release programming.

The Court found that Long satisfied his initial burden of identifying a facially reasonable accommodation. He had previously used specialized footwear and experienced substantial pain when walking without it. Significantly, DOCCS eventually approved his request for orthotic shoes in May 2016.

The Court also rejected the district court's characterization of the footwear request as merely a demand for specific medical treatment. Long was not claiming that DOCCS denied him medical care. Rather, he argued that the denial prevented him from accessing prison services and programs because of his disability. That is an actionable ADA and Rehabilitation Act theory.

Once Long established a facially reasonable accommodation, the burden shifted to DOCCS to demonstrate undue hardship. The district court had not properly conducted that inquiry. The case returns to the district court to apply the correct legal standard on the statutory disability discrimination claims. 

What do we learn here? While prison officials are not required to provide an inmate's preferred accommodation, they must demonstrate that the accommodation actually works or establish that the requested alternative would impose an undue hardship. The Court does pay homage to the principle that prison security, administrative concerns, and the orderly delivery of medical services are legitimate considerations in evaluating undue hardship. But those considerations must be addressed through the proper legal framework rather than simply assuming that whatever accommodations prison officials provided were reasonable.

Police officer has a viable retaliation case under the First Amendment

The Court of Appeals holds that a police officer may challenge a promotion denial that he claims was in retaliation for speaking out against possible supervisory misconduct.

The case is Beatty v. Vafeades, a summary order issued on October 26. Plaintiff was was a sergeant with police department in Nassau County. In 2017, he saw his supervisor working behind the counter at a bagel shop and eventually came to believe Vafeades owned and operated the business with two other police officers who were subordinate to Vafeades. Was this a conflict of interest? Maybe. Plaintiff reported this to Inspector Glenn Quinn, the department's second-in-command, who in turn told the Police Commissioner Charles Gennario, about it.

Months later, Vafeades replaced Gennario as Police Commissioner. Beatty says Vafeades retaliated against him for reporting the bagel-shop arrangement. Among other things, Beatty claimed that he was passed over for a promotion.

The district court dismissed the case, holding that plaintiff's speech was unprotected under the First Amendment because he did not speak as a citizen but an employee. That would make this a Garcetti case, named after the Supreme Court's 2006 ruling that public employees who speak as an employee and not as a citizen may be disciplined for their speech. The Second Circuit (Parker, Nathan, and Kaplan [D.J.]) reverses and returns this case to the Eastern District of New York for an exciting trial.

Whether plaintiff spoke as a citizen or employee turns on whether the speech ordinarily falls within the scope of the employee's responsibilities. Courts examine the employee's actual, day-to-day responsibilities rather than simply rely on formal job descriptions. We turn to Matthews v. City of New York, 779 F.3d 167 (2d Cir. 2015), where the court said a police officer who complained to commanding officers about a precinct-wide arrest spoke as a citizen, as reporting supervisory misconduct was not part of his ordinary job duties. That reasoning applies here. 

Beatty's responsibilities as a sergeant involved supervising police officers. He was not responsible for monitoring the conduct of his own supervisors, much less investigating their outside business arrangements. The department's job description confirmed that supervisory officers were accountable for the proper performance of officers under their supervision. The fact that Beatty had a general obligation to report violations of departmental rules did not change the analysis. The Matthews precedent rejected the argument that a general duty to report misconduct determines whether an employee speaks pursuant to his official duties. Otherwise, public employers could undermine First Amendment protections simply by imposing broadly worded reporting obligations on their employees.

Plaintiff also wins the appeal because his speech had a citizen analogue. Plaintiff raised the issue in person with commanding officers at police headquarters. While defendants argued that this was different from an anonymous civilian's written complaint about the same subject to the Village's human resources department, the department manual expressly permitted members of the public to lodge complaints at police headquarters with the ranking supervisory officer on duty. Complaints could be made in person, in writing, or by telephone. Since an ordinary citizen had access to the same or a similar reporting channel, plaintiff spoke as a citizen, as well.

Religious-based objection to selling bridal clothing for same-sex wedding violates state law

The First Department has sustained a State Division of Human Rights finding that a wedding business violated state law in refusing to sell a bridal jumpsuit for a same-sex wedding. The ruling rejects the business's objection that servicing the wedding would have violated their religious principles and the First Amendment.

The case is SDHR v. D. Auxilly NYC LLC, issued on October 22. Once the business proprietor realized the complainant wanted a same-sex marriage, Galbraith, the business owner, said it would not sell her the bridal jumpsuit, that making such an outfit would violate her sincerely held religious belief. The SDHR also found the business told complainant to reconsider the wedding entirely. The SDHR held a hearing in this case, and ruled against Auxilly, awarding the complainant $5,000 in damages for pain and suffering and a civil penalty in the amount of $20,000.

State law prohibits sexual orientation discrimination in public accommodations. While the Supreme Court has held in several high profile cases that businesses can deny servicing same-sex weddings under the First Amendment, that only applies when the services involve expressive conduct, like decorating a wedding cake or a website to celebrate the wedding. You may find these holds to be a stretch, but the Supreme Court has taken a broad definition of protected speech in these cases. But the First Department holds that selling a wedding garment is not expressive activity under the First Amendment, even if it might be adjusted for sizing. The business's order said at oral argument that the jumpsuit was a matter of expression, but the panel, to put it nicely, did not see it that way.  As the SDHR wrote in its appellate brief,

Galbraith, according to the parties’ stipulation of facts, is a designer and seller of “bridal and special occasion attire under the D. Auxilly brand.” However, her work, although tailored to fit the client, contains no speech element. It does not relate a “unique story” about the wearer using her original words and artwork. Although the clothing may reflect Galbraith’s considerable skill and talents, they are goods offered for sale to the general public. Galbraith’s sincerely held religious beliefs preclude same-sex marriage, but the commerce she partakes of is subject to the Human Rights Law’s requirements 

We also have ourselves a jurisdictional issue. The business was in New York, but the complaint lived in Missouri. New York law applies because the impact of the discriminatory violation transpired in New York.  

Plaintiff wins retaliation appeal against Trump's 2016 campaign

The Appellate Division has reinstated a retaliation case filed against Donald Trump's 2016 campaign, which alleges that, after its former director of Hispanic engagement sued the campaign for sex discrimination, the campaign filed an arbitration demand against her, seeking $1.5 million in damages. 

The case is Denson v. Donald J. Trump for President, Inc., issued on October 22. While plaintiff signed an NDA upon working for the campaign, a federal court later struck down the NDA as invalid and unenforceable. In this round, plaintiff argues the arbitration demand was filed in retaliation for her discrimination lawsuit. In an affidavit, the campaign's Chief Operating Officer, Glassner, asserted a good faith belief that the arbitration demand was legitimate. That was enough for State Supreme Court to dismiss this retaliation case.

The First Department reverses, and the case returns to Supreme Court for trial. The reason is that Glassner's subsequent deposition did not conclusively prove the campaign filed the arbitration claim in good faith. The Court reasons that Glassner's testimony was all over the place but not specific enough to prove as a matter of law that the campaign had a legitimate basis to proceed against plaintiff after she filed her lawsuit:

plaintiff identified sufficient evidence to raise a triable issue of fact as to whether the proffered reason was pretextual. Among other things, Mr. Glassner averred that defendant commenced the arbitration against plaintiff because it believed that plaintiff’s complaint contained “certain” disparaging and “sensationalist allegations” which “far exceeded what she was required to allege in order to state viable” discrimination causes of action against it. During his deposition two years later, however, Mr. Glassner testified that it was his personal decision to file the arbitration because he believed that every substantive paragraph of plaintiff’s complaint violated the NDA. Mr. Glassner could not describe how he distinguished between legitimate and illegitimate allegations for purposes of enforcing the NDA and could not specify which allegations were actually unnecessary for plaintiff to pursue this litigation.

Plaintiff also wins the appeal because the defendant cannot show how it suffered any real damages from her lawsuit, suggesting the $1.5 million demand was an arbitrary tactic to silence the plaintiff.

What we learn from this case is that not all affidavits in support of a summary judgment motion are enough to dismiss the case. Plaintiffs should determine whether the affidavit is sufficiently vague to permit discovery that would explore the factual basis for the otherwise untested allegations in the affidavit.

 

 

Anti-Biden Twitter critic loses federal civil rights suit alleging conspiracy to close his account

The plaintiff here was an active Twitter-poster who criticized President Biden's COVID-19 policies, challenging the shutdowns and school closures. Twitter eventually suspended him under its five-strikes-yer-out rule after determining he was tweeting misinformation about the virus. This lawsuit against the former FDA commissioner and Pfizer executives alleges that the suspension violated a federal civil rights conspiracy law. Plaintiff loses.

The case is Berenson v. Gottlieb, a summary order issued on October 20. Plaintiff says that Twitter shut him down after gaining over 200,000 followers in conspiracy with the Biden administration. Federal law does prohibit conspiracies to violate civil rights. That statute is 42 U.S.C. section 1985(3). But 1985(3) has significant limitations. It only applies when the conspiracy would violate your rights in a protected class under the Equal Protection Clause, such as a racial or class-based discriminatory motivation. Also, religious and gender discrimination. The Supreme Court has also Section 1985 might not protect political groups unless that discrimination was racially motivated. The Court of Appeals seems to protect plaintiffs who suffer conspiracies due to their political party affiliation but not because they are political opponents of the defendants.

Plaintiff loses because he asserts in the complaint that he is a Biden opponent and critic, not that he is suffering discrimination due to his political party. Also, the Second Circuit (Leval, Wesley and Bianco) holds,  he does not belong to a protected class under Section 1985(3). He belongs to a political class, not a racial, gender, or religious class. While he argues that he does belong to a racial or religious class because a disproportionate number of evangelical Christians and African-Americans support him, along with political conservatives, the Second Circuit rejects this argument as an effort to incorporate a disparate impact angle to the framework, which the Second Circuit denied in Reynolds v. Barrett, 685 F.3d 193 (2d Cir. 2012).

2d Department sustains sexual harassment finding against Boston Market

The Appellate Division has sustained a finding from the New York State Division of Human Rights that found a female employee was sexually harassed at Boston Market in Orange County. The Second Department also holds the damages and penalties were proper under the New York State HRL. The liability finding broadly interprets the Human Rights Law in that Boston Market was liable because the harasser was the plaintiff's supervisor.

The case is In the Matter of the New York State Division of Human Rights v. Boston Market Corp, issued on October 14. 

Bless Clarke was hired by Boston Market in July 2017 as a cashier, food server, and crew member, working there until April 2020. Nicholas Foreman,worked at the restaurant from October to approximately November 19, 2019. Employees recognized Foreman as the manager even though his formal managerial status was unclear. In the presence of Assistant General Manager Robert Smith, Foreman made sexually inappropriate comments to Clarke. Smith giggled at these comments but did nothing to stop them. Foreman also sometimes pinched Clarke’s leg, prompting her to tell him not to touch her. Clarke additionally observed Foreman appearing intoxicated at work and reported this to Smith, who said he would notify General Manager Michele Carbon.

On November 18, 2019, Foreman began following Clarke at work. She attempted to avoid him by moving into the dining room, but he hugged her, pinned her arms, and forcibly kissed her on the mouth. Clarke struck Foreman, ran to the bathroom, and began crying. Clarke reported the assault to Smith, who contacted Carbon. Carbon instructed Smith to send Foreman home. Smith told Clarke to remain in the bathroom while Foreman was directed to leave. Ten minutes later, Clarke emerged and discovered that Foreman was still present. He apologized and claimed he had been “just trying to take the sickness” out of her, referring to her cold. Foreman was sent home. The following day, Carbon reviewed security-camera footage of the incident and terminated Foreman's employment.

Following the harassment and assault, Clarke experienced paranoia, depression, anxiety, and panic attacks that continued at least through December 2021. She avoided public places because she feared encountering Foreman and experiencing another panic attack. She also had difficulty eating. In May 2021, she began counseling, during which she discussed the sexual harassment.

On these facts, the SDHR found Boston Market liable for sexual harassment, awarding Clarke $75,000 for pain and suffering and fining Boston Market $50,000. The Second Department, which defers to the SDHR's factual findings in these cases, holds there is substantial evidence to support the liability findings and that the damages and fine are not excessive. 

The Appellate Division does not analyze the factual record or explain how the SDHR reached its determination, but what strikes me about this case is that the SDHR prevailed even though Carbon appeared to take remedial action after learning about the sexual harassment, firing Foreman the next day after reviewing the security camera footage. But, according to SDHR's appellate brief, Boston Market lost the case because the SDHR found that Foreman was a supervisor. The brief states, "The Division found Boston Market liable for Mr. Foreman’s sexual harassment of Ms. Clarke. It reasoned that because Mr. Foreman is a supervisor, 'that harassment is attributable to Boston Market.'” SDHR appears to interpret the amended New York State HRL to permit liability in this circumstance, a departure from the prior statute (and Title VII), which required the plaintiff to show that management condoned or supported the harassment. What also clinched victory for the SDHR was that the restaurant did not stop Foreman when he had harassed Clarke on prior occasions.

To the extent an SDHR brief in the Appellate Division represents a policy pronouncement useful for other cases, here is the SDHR's analysis, departing from the First Department's interpretation of the NYSHRL as well as the Supreme Court's leading Title VII cases on this issue, Faragher and Ellerth:

the Division submits that the language of EXEC. LAW §296(1)(h), in conjunction with its legislative history and the evolution of a stricter liability standard in case law construing the state Human Rights Law in the wake of Faragher and Ellerth, weigh against the interpretation that the First Department has given this new subsection respecting vicarious liability as dependent on supervisory status. The provision of the New York City Code requiring that, in order for an employer to be liable under the City Human Rights Law, either the wrongdoer must be a supervisor or the employer condoned the discriminatory act has never had a statutory counterpart in the state Human Rights Law. 

 The Commissioner's order in this case will help plaintiffs win their cases provided the plaintiff's supervisor committed the harassment, regardless of management's response. It reads:

Effective August 12, 2019, the Human Rights Law was also amended to ensure that the provisions of the law be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws have been so construed. The amendment further mandated that exceptions to and exemptions from the provisions of the law shall be construed narrowly in order to maximize deterrence of discriminatory conduct. See Human Rights Law § 300. As a result of these amendments, the case law that developed under the prior “severe or pervasive” standard is no longer applicable to harassment cases. Harassment claims are now analyzed more like claims under the New York City Human Rights Law than federal law. See Wellner v. Montefiore Med. Ctr., 2019 WL 4081898 (S.D.N.Y. 2019)

Complainant has proven that she was sexually harassed by Foreman, who engaged in inappropriate behavior towards her throughout his employment with Boston Market by making comments about her body and undergarments and touching her legs. On November 18, 2019, Foreman attacked Complainant by hugging her and kissing her on the lips while she resisted him. Foreman’s conduct subjected Complainant to inferior terms and conditions of employment because of her sex and constituted sexual harassment under the Human Rights Law. Because Foreman was a supervisor, that harassment is attributed to Boston Market.

 

Welcome to New York Times v. Sullivan

A Republican Congressman sued NBC over a Rachel Maddow's comment that he had accepted material from a Russian agent without notifying the authorities. That comment was apparently false, but Maddow got the "news" from a Politico article. The congressman, Devan Nunes, sued NBC for defamation. The lawsuit fails because Nunes cannot prove actual malice.

The case is Nunes v. NBC Universal, a summary order issued on October 15. Defamation cases in the United States are difficult to win when the plaintiff is a public figure, like a Congressman. This is because the Supreme Court in New York Times v. Sullivan (1964) said public figures have to prove actual malice. This heightened standard, said the Court, ensures public debate will not be quashed by fear of a lawsuit, and that people may get their facts wrong on public issues so long as they do not knowingly repeat false information or rely on untrustworthy news sources.

Plaintiff wanted the Second Circuit (Calabresi, Lee and Nardini) to disregard the actual malice test. There is a movement afoot to accomplish just that, and some conservatives on the Supreme Court had suggested it is time to do so. But we are not there yet, and actual malice is embedded in our constitutional system as much as the Dormant Commerce Clause and Sovereign Immunity. Besides, New York law recognizes the actual malice test. Either way, plaintiff has to prove actual malice.

Summary judgment was proper on this claim because plaintiff cannot show that Rachel Maddow knowingly repeated a falsehood. In relying on the Politico article, she acted reasonably under the constitutional order, as Politico is not the Weekly World News. The Second Circuit writes, 

"In New York Times, the Supreme Court held that a defendant’s reliance on a responsible source negates a finding of “the recklessness that is required for a finding of actual malice.” “Similarly, this Court has held that where reporters’ false statements in an article were based on reliable sources, the defendant could hardly be accused of gross negligence, much less actual malice.” Nunes provided no evidence at the summary judgment stage that provided any basis for a reasonable inference that Maddow or Gnazzo should have regarded the Politico article as unreliable. 

 

Employees get paid when they are required to show up early but there is no work to perform

The Second Circuit has reinstated a wage-and-hour lawsuit alleging that a supermarket required employees to arrive 15 minutes before their shifts but did not pay them when managers were late unlocking the stores. The court holds that the Fair Labor Standards Act can require employers to compensate employees for waiting time when they are required to report for work at a designated time but management prevents them from actually starting work. 

The case is Santos v. Lidl US, LLC, issued on October 13. Santos worked as a store clerk at Lidl grocery stores on Long Island. Her opening shift was scheduled to begin at 5:00 a.m., but Lidl required her and other employees to arrive 15 minutes earlier. Sometimes, the stores remained locked because opening managers did not arrive until 5 a.m. or later. Picture the employees standing around in the parking lot and outside the front door at 4:45 a.m. waiting for a supervisor to show up and let them into the store. 

Employees could not clock in until they entered the stores. When managers were late, employees had to wait outside without pay despite having reported to work at the time Lidl required. This happened approximately once a week, costing plaintiff 15 minutes of wages. During five weeks, the unpaid time also resulted in lost overtime compensation.

Plaintiff sued under the FLSA and New York Labor Law, seeking unpaid wages on behalf of herself and other employees. The district court dismissed the claims, reasoning that the Portal-to-Portal Act excluded the waiting time from compensable work. The Court of Appeals revives the case.

The Second Circuit (Robinson, Rakoff [D.J.], and Sullivan in dissent) notes that the Portal-to-Portal Act generally excludes time spent on activities preliminary or subsequent to an employee’s principal job duties. But the statute does not categorically exclude all waiting time before a shift. DOL regulations distinguish between employees who are “engaged to wait” and those who are “waiting to be engaged.” An employee who voluntarily arrives early and waits for work generally is not entitled to compensation for that time. By contrast, an employee who must report at a particular hour, is ready and willing to work, and cannot begin working for reasons beyond the employee’s control may be entitled to compensation.

Plaintiff plausibly alleges compensable waiting time. At the pleading stage, the court had to accept her allegations that Lidl required her to arrive at 4:45 a.m. and that she sometimes could not enter the store because her manager had not arrived. At the same time, the court rejected Lidl’s argument that the claim was too trivial to be actionable under the FLSA’s de minimis doctrine. Under Second Circuit precedent, courts consider the difficulty of recording the time, the aggregate amount of compensation at stake, and the regularity of the activity. Because Santos alleged 15 minutes of unpaid time each week, the court could not conclude from the complaint that the time was insignificant or too difficult to record. Employers cannot automatically disregard regularly occurring, readily ascertainable working time merely because each individual period is short.

Plaintiff loses retaliation case on appeal

A plaintiff can establish a prima facie case of retaliation and still lose at summary judgment. That is what happened to an Office of Mental Health employee whose discrimination complaint was followed by a series of disciplinary actions. The plaintiff loses because defendant had documented her performance problems before she ever filed the complaint.

The case is Rahman v. Carlin, a summary order issued on October 6. Plaintiff worked for OMH. On April 29, 2019, she filed complaints with the State Division of Human Rights and the EEOC, alleging discrimination over her failure to receive a promotion and equal pay. She claimed the discrimination was based on her race, color, and national origin. She later sued, claiming defendants retaliated against her because she filed that complaint.

The district court granted defendants summary judgment. The Second Circuit (Jacobs, Merriam and Schwartz) affirms. Plaintiff identified several allegedly retaliatory actions, including two interrogations, paid administrative leave, a disciplinary notice, and an unsatisfactory performance evaluation. She also argued that earlier performance evaluations were also adverse actions. The Second Circuit stated that, under Section 1983 plaintiff must show a materially adverse employment action, while the NYSHRL reaches conduct reasonably likely to deter someone from opposing discrimination. More on these dueling legal standards at the end of this blog post.

Plaintiff loses because her performance problems predated her discrimination complaint. The record showed concerns about her work performance before April 29, 2019. An April 17 email discussed concerns about her knowledge of workplace policies, failure to check email, responsiveness, and interactions with a supervisor. Later evaluations and disciplinary measures continued to cite documented performance problems. Nor could plaintiff identify any comparators who were treated differently. And the challenged actions were not sufficiently close in time to her April 2019 complaint to support an inference of retaliation.

The Court says the retaliation test under Section 1983 requires a showing that plaintiff suffered a material adverse action, in contrast to state law's dissuasion test. Is that correct? The Second Circuit cites Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023), for this proposition, but Buon was a disparate treatment case, not a retaliation case. Disparate treatment cases apply a different standard, one that is less favorable for plaintiffs than the dissuasion test in retaliation cases. What is more, Buon predates the Supreme Court's ruling in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), which rejected the materiality test applied in Buon for a more forgiving test, requiring that plaintiffs in disparate treatment cases only show "some harm," not material or significant harm. The analysis in Buon is outdated. This apparent error would not have made a difference in the outcome of this appeal, as the Court of Appeals also rejected plaintiff's case under the dissuasion test under state law. 

Plaintiff loses political affiliation case

The Court of Appeals holds that three Program Integrity Officers who worked for the Orange County Sheriff cannot sue for First Amendment/political affiliation retaliation because they held political jobs, which gave the Sheriff discretion to replace them after they supported the Sheriff's political opponent in the primary election.

The case is Cowart v. Arteta, a summary order issued on October 4. This case highlights an issue that I've raised as a CLE lecturer over the years: that much of constitutional law is judge-made law, and the judges love their multi-part tests, again, created by the courts, in working through the constitutional puzzle. The First Amendment protects the right of speech and political association, but its plain language does not help the courts resolve cases like this. The federal courts, as they have done in all constitutional cases, have therefore created a balancing test. In cases like this, that test pits the individual speech/association right against an elected governmental official's need to implement their policies.

In Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980), the Supreme Court created a test for political association cases: public employees can be dismissed from employment based on their political affiliations without violating the First Amendment if “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” The Court did not detail what constitutes "appropriate requirement." For that inquiry, we look to the Second Circuit, which in Vezzetti v. Pellegrini, 22 F.3d 483 (2d Cir. 1994), created an eight-factor test. These factors  

are “useful in deciding whether a position” is subject to the Elrod-Branti exception: whether the employee (1) is exempt from civil service protection, (2) has some technical competence or expertise, (3) controls others, (4) is authorized to speak in the name of policymakers, (5) is perceived as a policymaker by the public, (6) influences government programs, (7) has contact with elected officials, and (8) is responsive to partisan politics and political leaders. 

Further complicating matters, none of these eight factors is dispositive. We look to the totality of the circumstances. No case is going to be so one-sided that the court can easily decide the matter. Defendants will point to some of the factors, and plaintiffs will point to the other factors, and each side will say the balance tips in their favor. But you can see from the eight factors that elected officials and their appointees have wide latitude in hiring and promoting political loyalists despite the First Amendment's protection against associational discrimination.

Here, the Court of Appeals (Merriam, Livingston and Schwartz) says, plaintiffs each held a position for which political affiliation was an appropriate reason to fire them. They conducted officer integrity checks and internal investigations into allegations of officer corruption and/or misconduct, interviewed witnesses and targets of internal investigations, completed and filed classified and confidential reports with the Sheriff, reviewed office policies and forms and ensured compliance with professional police and corrections professional standards, maintained working relationships with Sheriff and Corrections command staff and other agencies, and completed special assignments. This is important work, but was it inherently political in nature? Yes, says the Court of Appeals.

The Sheriff was entitled to replace plaintiffs with people who shared his political views or philosophy. Or his management style. Plaintiffs did not have civil service protection, they were empowered to speak for the Sheriff, their jobs required expertise, and the job description make clear that a PIO has “wide latitude for independent judgment in carrying out” duties “in accordance with established office policies.”

Court broadly interprets the Ending Forced Arbitration Act

The Second Circuit has clarified the scope of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), holding that when the EFAA applies, it prevents enforcement of a pre-dispute arbitration agreement as to the entire lawsuit, not just the sexual-harassment claims.

The case is Diaz-Roa v. Hermes Law, issued on September 30. This is the second important EFAA case in the Second Circuit in recent weeks. The last ruling was favorable to defendants in limiting the scope of the continuing violations rule in EFAA cases. This ruling is quite favorable to plaintiffs.

Plaintiff worked for Hermes Law beginning in 2017 and eventually became an executive at ClaimDeck, a legal-technology company founded by Hermes Law's owner, Dwayne Hermes. She received stock options representing approximately 10 percent of ClaimDeck. By August 2023, those options had fully vested and were worth more than $1 million. In December 2023 and again in January 2024, plaintiff expressed her intention to exercise the options. She was fired shortly thereafter.

Plaintiff also alleged that she had been subjected to sexual harassment, claiming that defendants encouraged her to flirt with prospective clients, commented repeatedly on her appearance, and, at a business dinner, compared her to a piece of steak. She also alleged an earlier incident in which Hermes allegedly climbed onto a scooter behind her in a compromising position while another employee took photographs.

In her lawsuit, plaintiff asserted a series of claims, including sexual harassment under the New York City and New York State Human Rights Laws, breach of contract, violation of New York Labor Law § 193, tortious interference, and conversion. The latter claims arose from the alleged effort to terminate her before she could exercise her vested stock options. The defendants sought to compel arbitration based on an arbitration agreement Diaz-Roa had signed in 2018. The district court refused, holding that the EFAA rendered the agreement unenforceable with respect to the entire case. The defendants appealed.

A few asides. First, the Court of Appeals has jurisdiction to entertain defendants' immediate appeal from the trial court's order denying the motion to compel arbitration. Had the district court granted that motion, the Second Circuit would have had no jurisdiction to hear the appeal. That one-sided jurisdictional rule will not surprise plaintiffs' lawyers, who for the most part do not like arbitration, which gives employers a huge advantage because (1) there is limited discovery, (2) arbitrators are not required to follow the law, (3) there is no jury, (4) the proceedings are not public, (5) there is no right to appeal, (6) state courts are highly deferential to arbitration rules if you try to challenge them in court, (7) the employer usually pays the arbitrator for their time, (8) damages are generally lower, and (9) studies show that plaintiffs are less successful in arbitration than in court before a jury. The EFAA creates an exception to the rule that arbitration clauses are enforceable, but only when the plaintiff asserts a sexual harassment claim. The issue here is whether the non-harassment claims in the same case may also escape arbitration. The answer is yes. 

The EFAA amended the Federal Arbitration Act in March 2022, providing that, when properly invoked by someone alleging a sexual-harassment or sexual-assault dispute, a pre-dispute arbitration agreement is not enforceable “with respect to a case” that relates to that dispute. The defendants argued that “case” really meant individual claims. Under their interpretation, plaintiff's sexual-harassment claims could remain in federal court, but her unrelated conversion claim would have to go to arbitration.

Rejecting that interpretation, the Court of Appeals (Walker, Bianco and Perez) notes the ordinary meaning of the word “case.” A case means a lawsuit or judicial proceeding as a whole, while a “claim” refers to a particular demand for relief within that lawsuit. Congress knew how to use the word “claim” and actually used it elsewhere in the EFAA. The Court holds that Congress deliberately chose “case” in Section 402.

The Court also rejected the defendants' argument that this interpretation makes the statute's “relates to” language meaningless. A lawsuit must still have a connection to the sexual-harassment dispute. But once the EFAA applies to that case, the statute does not require courts to conduct a claim-by-claim arbitration analysis. In addition, the Court rejected reliance on the federal policy favoring arbitration. Congress itself amended the FAA through the EFAA and expressly created an exception for cases involving sexual-harassment or sexual-assault disputes. The FAA is a powerful statute, and it has sent countless cases to arbitration, but Congress does have the power to amend it, and it did so in response to the "Me-Too" era.

The Court declined to resolve a separate question concerning whether a plaintiff must merely allege a nonfrivolous sexual-harassment claim or must satisfy the more demanding Twombly/Iqbal plausibility standard to invoke the EFAA. The defendants did not properly challenge that issue on appeal, and they did not dispute that plaintiff's allegations satisfied even the higher standard.

Long Island Native American mascot dispute is revived on appeal

You may not be aware of this, but a culture war has been brewing on Long Island in recent years over the use of mascots featuring Native American imagery. The State of New York is trying to phase out "The Chiefs" and "The Warriors" and has issued regulations defining when districts and their employees may utilize or promote such mascots at school events.

The case is Wantagh Union Free School District v. New York State Board of Regents, a summary order issued on October 1. A state regulation says that public schools cannot use such names, logos or mascots except for classroom instruction. That would eliminate school and team mascots with Native American headdresses. Another rule says school officers and employees cannot "utilize or promote" mascots on school property or at a school function. That rule is the subject of this court ruling.

One plaintiff serves on the Wantagh Board of Education. He challenges this rule to the extent it may bar him from wearing Warriors apparel at a district sporting event. The district court dismissed his case, but the Court of Appeals (Walker, Park and Lee) reinstates it for additional analysis. Wearing such clothing is expressive conduct under the First Amendment. The clothing rule also implicates the First Amendment because he sues as a district volunteer, not an employee, which means he may not have to prove his clothing addresses a matter of public concern, a legal term of art that says the government cannot regulate public employee speech if covers political or social matters of interest to the community, like a whistleblower or letter-to-the-editor gadfly. Since plaintiff is an elected member of the Board of Education, the district court must determine whether the "public concern" framework applies to him or if he instead enjoys the same broader rights as any other member of the public who attends a high school football game.

The case also returns to the district court to consider the context of the plaintiff's speech. The Court of Appeals holds that wearing Warriors apparel at a public event may be intended to send a message about the state's restrictions on Native American mascots and also to support the team. This kind of "message" speech may be protected under the First Amendment. The district court has to determine in the first instance whether wearing this clothing is expression on a matter of public concern. If so, the regulation may be struck down as overbroad in violation of the First Amendment

 

 

Second Circuit rewrites the rules for associational standing in Section 1983 cases

The Second Circuit has overruled a 1973 precedent that barred organizations from bringing § 1983 lawsuits on behalf of their members. This ruling makes it easier for organizations to sue on behalf of their members.

The case is Defending Education v. Croton-Harmon Union Free School District, issued on September 15. Defending Education challenged student-speech policies adopted by the Croton-Harmon School District in Westchester County. The organization represented three parents whose children attend Croton-Harmon schools. The parents alleged that the district's policies concerning discrimination, harassment, bullying, gender identity, and student speech violated the First Amendment and chilled their children's speech. After the plaintiff organization lost this appeal last year, on a petition for reconsideration, the Court of Appeals (Calabresi, Parker and Nardini), holds that organizations may assert associational standing under the three-part test from Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). 

What is standing? That legal principle gives you the right to bring a lawsuit. Most litigants have standing: something bad happened to me, and I am bringing a lawsuit. Some organizations can also sue on behalf of their members. That's associational standing, and it is much more complicated.  

In Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973), the Second Circuit more than 50 years ago held that organizations could not sue under § 1983 to vindicate the rights of their members. The trial court in this case therefore dismissed the case for lack of standing. In April 2025, the Second Circuit initially affirmed that dismissal because Aguayo was controlling Circuit precedent.

Defending Education then sought reconsideration, asking the Second Circuit to overrule Aguayo. The Court granted the motion, rendering the first appellate ruling in this case a nullity. The Court noted that when Aguayo was decided, the Second Circuit was the first federal appellate court to hold that membership organizations could not bring § 1983 claims on behalf of their members. More than fifty years later, every other federal circuit that had addressed the question had reached the opposite conclusion. The Supreme Court, meanwhile, had repeatedly recognized associational standing, including in cases involving § 1983 claims.

The Supreme Court's decisions in Warth v. Seldin, 422 U.S. 490 (1975), and Hunt are implicated here. Under Hunt, an organization can sue on behalf of its members when three requirements are met: (1) the members would have standing to sue individually; (2) the interests at stake are germane to the organization's purpose; and (3) neither the claim nor the requested relief requires individual members to participate in the lawsuit.

The Second Circuit holds that Aguayo cannot be reconciled with this Supreme Court precedent. It also points to the Supreme Court's recent affirmative action decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), which applied the Hunt framework to an association asserting constitutional claims under § 1983.

The Court Appeals thus overrules Aguayo's associational-standing rule, as well as later Second Circuit decisions that relied on that rule. What it means is that organizations are no longer categorically barred from bringing § 1983 cases on behalf of their members in the Second Circuit. The case returns to the trial court to determine whether the organization satisfies Hunt's requirements. The Second Circuit expressly to decide whether the organization would ultimately satisfy the requirements for a preliminary injunction.

Second Circuit says border agents can search cellphones without suspicion

The Second Circuit has held that federal agents can search your cellphone when you enter the United States without a warrant or reasonable suspicion..

The case is United States v.Alisigwe, issued on September 17. Under this ruling, the government may conduct a manual search of a traveler’s cellphone at the international border without any individualized suspicion. That is what happened here.

Alisigwe was a lawful permanent resident whom authorities suspected of using fraudulent identification documents to open bank accounts. In 2019, when Alisigwe returned to the United States through Idlewild Airport, Homeland Security and Customs and Border Protection officers stopped him for an inspection. An officer scrolled through Alisigwe's phone, and photographed material in his photo gallery, which contained names, birth dates, Social Security numbers, bank-account information and addresses belonging to other people. Two years later, officers again stopped Alisigwe at the airport and searched his phone. This time they photographed a Whats App message concerning one of the people whose identity had allegedly been stolen. When Alisigwe moved to suppress the cellphone evidence, the district court rejected the motion, reasoning that cellphone searches at the border required reasonable suspicion but that the officers had reasonable suspicion in this case.

The Second Circuit (Menashi, Lee [concurring] and Gonzalez [D.J.]) agreed that the evidence could be used, but for a different reason. The majority invokes the border-search exception to the Fourth Amendment. Ordinarily, a warrantless search requires an exception to the warrant requirement. But as for border searches, the Supreme Court holds that the government's interest in determining who and what enters the country permits routine searches without probable cause, a warrant, or reasonable suspicion.

The Second Circuit had previously distinguished between routine and non-routine border searches. Searches of luggage and other belongings generally are routine; highly intrusive searches of the person, such as strip searches and body-cavity searches, can require reasonable suspicion. The majority holds that a cellphone falls on the “property” side of the equation. The court recognizes that cellphones contain much personal information. But it reasoned that the government's border interest is not limited to physical contraband. Digital information can constitute contraband, and information on a cellphone may help determine whether a person is entitled to enter the country.

Judge Lee concurred in the judgment. She agreed that the particular searches in this case did not require a warrant or probable cause. But she disagreed with the majority's broader holding that all international travelers' cellphones may be searched without any individualized suspicion. She notes that a cellphone is not a suitcase and can contain medical information, financial records, personal messages, internet searches, location information and other highly private material. Judge Lee questioned whether the traditional rationale for border searches should extend to this comprehensive modern device. She also noted that Alisigwe did not challenge the district court's finding that reasonable suspicion actually existed. As Judge Lee sees it, the court did not need to decide whether suspicionless cellphone searches are constitutional.

2d Circuit interprets the Ending Forced Arbitration Act (Newton v. LVMH Part III)

The Court of Appeals has issued an important ruling on the scope of the Ending Forced Arbitration Act (EFAA), holding that a high-profile sexual harassment plaintiff cannot avoid arbitration on her sexual harassment and retaliation claims even if some of the hostile conduct took place after the EFAA took effect in March 2022.

The case is Newton v. LVMH, issued on September 21. Plaintiff -- whose testimony before Congress helped lead to the EFAA's enactment -- asserts that she endured sexual harassment prior to March 2022, and that following enactment of the EFAA, the sex discrimination and retaliation continued through her termination in December 2022. Under the EFAA, plaintiff can avoid arbitration on all her claims, including those that accrued prior to March 2022, if they are part of a continuing violation, an equitable principle that allows you to sue over actions that would be otherwise time-barred. 

"However, to trigger the doctrine, the timely and untimely acts must be 'sufficiently related' such that they constitute part of the same 'unlawful employment practice.'” The Court of Appeals (Bianco, Menashi and Brindisi [D.J.]) cites McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75, 77 (2d Cir. 2010), for this proposition. Until now, McGullam was the leading case on this issue. The Court adds:

To determine whether the requisite relationship between timely and untimely acts has been shown, we consider a variety of factors, including “the commonality of the environment in which the incidents took place (and whether a change in environment is due to intervening action by the employer), the nature of the incidents, and the temporal discontinuity between the incidents.” 

The continuing violation doctrine does not apply here because the pre- and post-EFAA acts of retaliation "are not sufficiently related such that they are 'part of the same course of discriminatory conduct," as "the 'who' and the 'how' of the alleged harassment and retaliation differed between the two relevant time periods." 

Prior to the EFAA's enactment, plaintiff primarily suffered discrimination from colleagues Doran (sexual harassment) and Firestone (who perpetrated the retaliation). The post EFAA retaliation was perpetrated by her supervisor, Pratt. Moreover, pre-EFAA, the Title VII violations involved pure sexual harassment. The post-EFAA violations involved retaliation that differed materially from the pre-EFAA retaliation. Pre-EFAA, plaintiff alleged, the company undertook a sham investigation into her sexual harassment complaint, giving her bad performance reviews, and other acts of workplace hostility. Post-EFAA, she alleges that LVMH engaged in a different pattern of retaliation, including requiring her to get pre-approval before she spoke publicly at panels or conferences, micromanaging her work matters, ignoring her and terminating her employment. There is not enough overlap between -pre- and post-EFAA allegations of retaliation to trigger the continuing violations rule. 

Plaintiff successfully pleads retaliation claim (Newton v. LVMH Part II)

The Court of Appeals has provided further guidance on how to determine if a Title VII retaliation plaintiff pleads a causal link between her protected activity and the adverse action, such as termination. We do not just look at the timing of the adverse action but its context.

The case is Newton v. LVMH, issued on September 21. I covered the protected activity holding at this link. The protected activity took place in August 2022, when plaintiff declined to meet with her supervisor to discuss settling her pending claims. Plaintiff was fired in December 2022. That four-month gap is enough to plead a prima facie case. The Second Circuit has issued numerous rulings stating that a certain time period is enough to assert causation. Here is how the Court (Bianco, Menashi and Brindisi [D.J.]) frames the inquiry in this case:

the time between the refusal and the termination is as much as four months. We have previously held that similar amounts of time are sufficient to suggest causation. See, e.g., Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“[W]e have previously held that five months is not too long to find the causal relationship.”); Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (five months); Gorman-Bakos v. Cornell Co-Op Extension of Schenectady Cnty., 252 F.3d 545, 555 (2d Cir. 2001) (four months). 

Importantly, “[w]here temporal proximity is not the only evidence that bears on a causal connection, we have recognized that the lapse in time between the protected activity and adverse action can be longer.” Banks v. Gen. Motors, LLC, 81 F.4th 242, 277-29 78 (2d Cir. 2023). That additional evidence of causation can arise in the context of an ongoing discrimination lawsuit brought by the employee. . . . Moreover, in looking at “the facts as a whole,” we can also consider intervening patterns of “antagonism” or a “drumbeat of retaliatory animus” that do not themselves necessarily rise to a level of an adverse employment action.

Plaintiff does not merely rely on temporal proximity but the pattern of antagonism that followed the filing of her lawsuit, including her humiliating, public termination. Ultimately, "the combination of temporal proximity and these antagonistic actions lead us to conclude that Newton has plausibly alleged causation." 

Plaintiff engaged in protected activity in declining to meet with supervisor about settling her pending sexual harassment claims (Newton v. LVMH Part I)

The Court of Appeals has reinstated a Title VII lawsuit that alleged that management retaliated against a lawyer for a prominent international firm after she filed a sex discrimination lawsuit and later on declined to discuss settlement with her superior. The Court further holds that plaintiff has sufficiently plead that her protected activity in declining to discuss settlement led to a series of adverse actions, including her termination.

The case is Newton v. LVMH, issued on September 21. This blog post will cover whether plaintiff engaged in protected activity. 

Plaintiff sued LVMH in 2019 in state court and again in December 2023 in federal court, alleging that she was subjected to sexual harassment and retaliation in violation of state, federal, and city law. (The state court action was sent to arbitration and the Title VII action asserted claims that plaintiff accrued after the Ending Forced Arbitration Act (EFAA), which bars arbitration in sexual harassment cases, took effect.

In August 2022, following what plaintiff claimed was a series of retaliatory acts, including exclusion from a company retreat, disdainful looks at a company retreat, being berated over her job performance, and a time-consuming assignment given while she was on vacation, her boss, Pratt, asked if plaintiff would consider settling her claims. Plaintiff declined the invitation. Afterward, from August 2022 through December 2022, she suffered additional adverse actions, including a requirement that she get pre-approval before she agreed to speak at any panels or conferences (plaintiff was a high-profile public speaker about sexual harassment), exclusion from important communications, being ignored at weekly one-on-one meetings with Pratt, exclusion from an employee's farewell dinner, termination in a publicly humiliating manner, and denied her personal effects, a bonus, and a matching charitable contribution.

The Court of Appeals (Bianco, Menashi and Brindisi (D.J.]) holds that plaintiff engaged in protected activity in refusing to meet with her boss to discuss settlement. This is a new holding for the Second Circuit, which reasons:

If initiating a claim constitutes an assertion that the plaintiff was wronged, refusing to end a pursuit of that same claim with a settlement can—depending on the context—constitute a continuation of the same assertion. The relevant question is whether the employer understood or could reasonably have understood that the plaintiff’s refusal was an assertion of her continued opposition to the employer’s unlawful employment practices in violation of Title VII. If so, the refusal is a protected activity.

To trigger the "opposition clause" under Title VII, "such opposition can potentially include not only the filing of a discrimination lawsuit itself, but also other statements made, activities pursued, or positions taken by a plaintiff during the course of that discrimination lawsuit—such as a deposition, settlement discussions, a trial, or an appeal." 

By August 2022, when plaintiff refused to meet with Pratt, she had been vigorously pursuing her legal claims against the company and spoke out before Congress in support of the EFAA. In this context,  "Newton has plausibly alleged that when she refused to meet with Pratt to discuss settlement, he could have reasonably understood that refusal as communicating her continued belief that she had been wronged by [alleged sexual harasser] Doran and LVMH’s discriminatory conduct, and that she wanted acknowledgement and legal redress for those wrongs. That constitutes opposition and, thus, protected activity." The Court states in a footnote that not every refusal to settle constitutes protected activity. "What an employer can reasonably understand such a refusal to communicate depends on the full context of the refusal."

Importantly, the Court further holds it was not fatal that plaintiff did not affirmatively tell Pratt that her refusal to discuss settlement was a means to continue protesting her discrimination. Plaintiff asserts that objection was implicit. The Court reasons:

the Supreme Court has recognized that conduct or communications that reveal opposition, even implicitly, can constitute protected activity. See Crawford v. Metro. Gov't of Nashville, 555 U.S. 271, 277 (2009) (“Countless people were known to ‘oppose’ slavery before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it ‘opposition’ if an employee took a stand against an employer’s discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.”); accord Albunio v. City of New York, 16 N.Y.3d 472, 479 (2011) (concluding that opposition under the NYCHRL does not require an explicit statement that the plaintiff is a victim of discrimination).  

 

   

For appellate junkies only

This is a case for appellate junkies. The Court of Appeals decides whether it even has jurisdiction -- or authority -- to resolve the appeal. Actually, this is not just for appellate junkies. If you handle cases in the district court only, you have to know what to do to preserve your client's appellate rights. 

The case is Peralto v. New York City Dept. of Education, a summary order issued on September 16. This case involves the Individuals with Disabilities in Education Act (IDEA), which grants certain rights to disabled students, including an Individual Education Plan (IEP). Plaintiff sought a preliminary injunction in the district court. On June 26, 2025, the SDNY said it did not resolve that motion and a decision will issue in due course. But plaintiff filed a notice of appeal on July 10, 2025, even before the court issued a ruling on the injunction. On July 15, the court formally denied the injunction. Two weeks later, plaintiff filed a motion in the Second Circuit to expedite appellate review, noting that plaintiff was challenging the district court's injunction ruling and explaining why that ruling was incorrect. Plaintiff never filed a formal notice of appeal.

Normally, we take up an appeal by filing a notice of appeal. That confers appellate jurisdiction upon the Court of Appeals. Without a formal notice of appeal, does the Second Circuit have the power to decide the appeal? Yes, says the Second Circuit (Calabresi, Carney and Perez). This is because courts will liberally construe the requirements under Federal Rules of Appellate Procedure 3(c), which governs the filing of notices of appeal. The Court notes that "a document not styled as a notice of appeal may therefore serve as one if it is timely and gives the notice required by Rule 3."

The motion to expedite the appeal qualifies as a notice of appeal under FRAP 3 because it was timely and it identifies the denial of the preliminary injunction as the ruling plaintiff sought to challenge. It does not matter that the motion to expedite was filed in the Second Circuit and not the district court. While we are supposed to file the notice of appeal in the district court, filing that document in the Court of Appeals is not fatal under FRAP 4(d).

On the merits, plaintiff loses. The Court of Appeals finds the district court did not improperly deny the injunction request over the student's private school placement.  

Second Circuit clarifies prior ruling on reasonable accommodations in religious discrimination cases

The Court of Appeals has clarified a prior ruling interpreting Title VII's requirement that the plaintiff prove she was denied a reasonable accommodation because of her religion. The clarification does not alter the ultimate ruling in this case, but it offers a more plaintiff-friendly rule for other cases.

The case is Bergin v. New York State Unified Court System, issued on September 15. My summary of the original ruling, issued on July 15, is here. In that post, I wrote:

The Second Circuit holds that its prima facie test for failure-to-accommodate claims is no longer good law following the Supreme Court’s 2015 ruling in EEOC v. Abercrombie & Fitch Stores. The Circuit thus vacated summary judgment entered in favor of a court officer who was fired after refusing to comply with the Unified Court System's COVID-19 vaccine mandate.

. . . 

“An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive,” just as “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The Supreme Court thus rejected one requirement of our old rule (that a plaintiff inform an employer of the need for an accommodation) and clarified that what a plaintiff must plead and, ultimately, prove (that the employer was motivated in part by the desire to avoid offering a religious accommodation). The Supreme Court explained that a “request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive,” but it “is not a necessary condition of liability.”

In other words, the plaintiff has to show that management was motivated to deny the accommodation due to her religion. In the clarification issued on September 15, the Court adds a footnote stating that "Plaintiff must show the accommodation was denied because of religion, but she does not have to prove traditional discriminatory animus or hostility toward religion." Here is the footnote in full:

In stating that Abercrombie abrogated the absence of a “motive” requirement in our prior test, we do not suggest that a new, heightened discriminatory motive requirement exists in failure-to-accommodate cases. That is to say, an employee asserting a failure-to-accommodate claim need not show that an employer’s denial of an accommodation was motivated by discriminatory animus against religion. But, consistent with Abercrombie, the employee does have to show that the denial was “because” of the employee’s religion as opposed to, say, the employee’s failure to timely provide sufficient information.

Another change to the original opinion is a footnote that references the Supreme Court's ruling in Muldrow, which made it easier for plaintiffs to prove an adverse action in discrimination cases. Muldrow dispenses with the requirement that plaintiffs show the personnel action was a "material" change in his employment. Instead, the plaintiff must show "some harm." In the new footnote, the Court of Appeals declines to find whether or not the denial of a reasonable accommodation would constitute an adverse action under Muldrow. 

 

 

 

Plaintiff gets new trial on wrongful conviction fabrication-of-evidence claim

Here is another fabrication-of-evidence claim that involves law enforcement allegedly cutting corners to ensure a criminal conviction. The case will eventually be decided by a jury. 

The case is Batista-Reyes v. Paul, issued on August 17, 2.5 years after oral argument. The Court holds that plaintiff is entitled to a trial on his claims for malicious prosecution and fabrication of evidence under § 1983. The Court also holds that the defendant, former Troy Police Sergeant Robert Paul, was not entitled to qualified immunity at the summary judgment stage.

In December 1993, a man staying at a Super 8 Motel in Troy, New York, was assaulted and robbed. He told police that his attacker was a dark-skinned Black man with a short afro, about 5'8" to 5'10", wearing a long black jacket. Paul became the lead investigator and soon focused on Batista-Reyes. But plaintiff did not fit the victim's description. He is a light-skinned Hispanic man, did not have an afro, and was wearing a white-and-blue Giants jacket rather than a long black jacket. Yet, two women, Laura Ashley Pullen and Shannon Houser, gave police statements implicating plaintiff. Pullen became the prosecution's principal witness. She testified before the grand jury and at trial, and Batista-Reyes was convicted of all seven counts, receiving a sentence of 25 years to life.

Pullen then changed her mind in 2002, writing a series of letters while she was incarcerated, stating that plaintiff did not actually commit the crime and she was pressured into implicating him. Pullen said the District Attorney had threatened her and “gave me a script.” She also wrote that she was “TOLD to say everything” and was even made to rehearse her responses. This led to an investigation, and a special prosecutor concluded there were serious doubts about Pullen's original testimony. The state court granted set aside the conviction and Plaintiff was released after spending nearly 25 years in jail. 

We have a series of issues. First, hearsay. Pullen's letters were unsworn, and Pullen was unavailable as a witness. Paul argued that the letters were hearsay and could not be used to defeat summary judgment. The Second Circuit (Carney, Lee and Walker in dissent) disagreed, holding the letters could be admissible under the residual hearsay exception, Rule 807. We rarely see rulings interpreting the residual exception, much less rulings that favor the party trying to prove their case through this kind of hearsay. Plaintiff wins this argument. The letters are reliable because Pullen wrote multiple letters over several months, apparently without external prompting, she repeatedly made the same allegations, her letters were not written in response to police questioning, and the circumstances suggested that she was motivated by guilt rather than an effort to curry favor with law enforcement. The letters were also probative because Pullen had repeatedly avoided being deposed or appearing in court. Thus, at summary judgment, the letters were the best evidence Batista-Reyes could reasonably obtain concerning what happened in 1993.

On the probable cause issue, the district court noted that the grand jury indictment creates a presumption of probable cause. But, the Second Circuit notes, the presumption disappears when there is evidence that the indictment was procured through fraud, perjury, suppression of evidence, or other bad-faith police conduct. Pullen's letters created a factual dispute about whether her grand jury testimony had been coerced or fabricated. The Court also found evidence connecting Paul to the alleged misconduct. He was the lead investigator. He interviewed Pullen and obtained her written statement. A reasonable jury could find that Paul was one of the people Pullen meant when she repeatedly referred to “they” giving her a script and telling her what to say.

What also helps plaintiff's case is he did not match the victim's description, and there was evidence that Paul failed to investigate another possible suspect who apparently fit that description better. A jury could therefore find that Paul failed to conduct an investigation that a reasonable officer would have pursued.

On the fabrication of evidence claim, the Second Circuit noted that a police officer violates due process when he creates false information likely to influence a jury and forwards that information to prosecutors. And knowingly eliciting false testimony from a witness can constitute fabrication of evidence.

In 1993, Houser gave police a detailed account of the assault. Her description closely tracked the victim's account, including details about the victim sleeping against the headboard, the television and light, the knife, the threats, and the Nintendo games. But in a 2020 deposition, Houser said she was never in the room and did not see the assault. She explained that she had been using drugs and had told police what they wanted to hear, whether it was true or not. While the trial court said plaintiff's theory about Paul feeding Houser the information was speculative, the Court of Appeals holds instead that the evidence was sufficient to allow a jury to determine how Houser knew the details in her original statement and whether Paul participated in creating that statement. The same was true of Pullen. Her 2002 letters, combined with Paul's role as lead investigator and his involvement in obtaining her statement, created a genuine factual dispute over whether he coerced or fabricated her evidence.

Lyft not liable under ADA for not providing accessible vehicles to disabled riders

The Court of Appeals holds that a Lyft passenger cannot win her disability discrimination claim despite claiming that Lyft did not provide her wheelchair-accessible vehicles, also known as WAVs. 

The case is Lowell v. Lyft, Inc., issued on August 27. Plaintiff uses a motorized scooter and lives in White Plains. Lyft offers wheelchair-accessible “Access” rides in nine cities, including New York City. But it does not offer Access service in Westchester or most other areas.

The plaintiffs, including an advocacy group, proposed ways that Lyft could solve the problem. They wanted Lyft to remove its “blocker” preventing WAVs from being used in areas without Access service. They wanted Lyft to ask its drivers whether they had access to WAVs. They also proposed allowing WAV drivers to accept other types of rides, prioritizing WAV requests, and offering bonuses and incentives to attract WAV drivers. After a bench trial, the district court rejected those proposals. On appeal, plaintiffs argued that the district court improperly placed the burden on them to prove their proposed modifications were effective.

While the ADA requires transportation services to make reasonable modifications to their policies and practices, a plaintiff seeking a modification must prove the modification will be effective. As the Second Circuit (Kearse, Nardini and Lee) explained, an ineffective modification cannot be reasonable because it does not accommodate the plaintiff's disability. The plaintiff must also identify a plausible modification whose costs, on their face, do not clearly outweigh the benefits. Once that showing is made, to win the case, the defendant must prove the proposed modification is unreasonable.

Plaintiffs lose on the plausibility element. The problem for plaintiffs is there was not enough evidence that their proposal would create a functioning WAV service in Westchester. WAVs are rare and are generally not manufactured by automobile companies as wheelchair-accessible vehicles. Instead, standard vehicles are converted afterward, and those conversions can cost tens of thousands of dollars. In addition, there are not enough WAV drivers out there. When Lyft had tried to recruit WAV drivers in the Philadelphia and Delaware areas, it contacted more than 26,000 drivers, fewer than 130 responded, 30 referrals were received, and only one WAV driver joined Lyft's platform. That experience made it difficult for plaintiffs to prove that simply asking Westchester drivers whether they had WAVs would solve the problem.

The plaintiffs also claimed the district court had improperly required them to prove that their other proposed modifications were reasonable. The Second Circuit disagrees. The district court properly required plaintiffs to prove effectiveness while applying the lighter burden concerning reasonableness. Lyft then presented evidence showing that the proposals were ineffective and, in some respects, costly or otherwise unreasonable. Because the plaintiffs could not prove that their modifications would actually provide WAV service, the Court did not even have to reach Lyft's argument that the proposals would fundamentally alter its business.