Plaintiff may challenge her termination under Due Process Clause

This appeal raises a complex issue relating to res judicata. Lawyers know about res judicata; the general public not so much. But this doctrine -- which prevents you from bringing the same lawsuit in different courts -- is important when it happens to your case. 

The case is Rosenthal v. Roosevelt Island Operation Corp., issued on August 10. This dispute has been going on for six years. Plaintiff was the President and CEO of the Roosevelt Island Operating Corporation, which governs Roosevelt Island. When she was fired, defendants claimed she had made racially and sexually offensive remarks, an allegation that plaintiff denied, prompting her to file an Article 78 petition. In those expedited proceedings, the parties are usually denied discovery and the state court normally resolves the case on the papers, including affidavits and exhibits, determining whether the challenged governmental action was arbitrary and irrational. The judge dismissed the Article 78 petition, holding that the "determination to terminate petitioner clearly was not irrational" given the comments that were cited as justification for her termination. The state court said the proper forum to challenge the factual basis for plaintiff's termination is a plenary action in state court, where you can take depositions and pursue other discovery.

Plaintiff thus filed suit in state court, which also ruled against her on the motion to dismiss relating to her discrimination claims, finding the Article 78 dismissal was a final judgment on the merits. But State Supreme Court only dismissed plaintiff's Section 1983 claims without prejudice, stating the claims should have been filed in the Court of Claims, which hears cases against the State of New York. Or, Supreme Court said, plaintiff could refile these claims against the defendants in their individual capacities, which is what she did in proceeding to federal court on a liberty interest claim arising from the Due Process Clause of the Fourteenth Amendment. 

But the federal court dismissed the Section 1983 claim on res judicata grounds. Under res judicata, you cannot relitigate the same unsuccessful claim in a different court, even if that claim was not asserted in the first lawsuit, so long as it relates to the claims that were actually dismissed. The reason the Court of Appeals reinstates this case is that the state court only dismissed plaintiff's Section 1983 claim without prejudice, which means you can file the same claim again in a different court. Dismissals without prejudice are not "a final determination on the merits." 

This is a new issue for the Court of Appeals (Sack, Perez and Preska [D.J.]), which believes the state's highest court would endorse this reasoning on what is traditionally a state law issue. The Second Circuit states:

We recognize that our own precedent has not squarely addressed such a scenario. In our view, however, the New York Court of Appeals has resolved precisely this conundrum by adopting the relevant Restatement exception permitting a plaintiff to refile specific claims—notwithstanding a final judgment on the merits as to other claims arising from the same transaction—where “[t]he court in the first action has expressly reserved the plaintiff’s right to maintain the second action.”  

. . .  

In other words, while a final judgment on the merits normally extinguishes all other claims arising from the same transaction, a concurrent dismissal without prejudice for some claims preserves a plaintiff’s ability to refile those specific claims in a second action. That is precisely what the Plenary Judgment did by dismissing Rosenthal’s § 1983 claim without prejudice and inviting Rosenthal to refile that specific claim in a different court. 

Nor does the unsuccessful Article 78 case present a res judicata problem. That dismissal only said that plaintiff could not prove her termination was arbitrary and capricious. But the Article 78 court did say the right proceeding for plaintiff was a plenary action with discovery in a different court. The Second Circuit states, "Even if the Article 78 proceeding were considered to have impliedly adjudicated Rosenthal’s discrimination claims, as the New York State Supreme Court later concluded and the Appellate Division since agreed, it is settled law that a 'judgment in a ‘pure’ Article 78 proceeding,' such as this one, 'does not preclude, under the doctrine of res judicata, a later section 1983 damages claim based on the same set of facts.'”

Bottom line: the plaintiff's Section 1983 due process claim may proceed in federal court even though her related claims were twice dismissed in state court. 

Bivens claim survives appellate review

The greatest loophole in constitutional law is that there is no statute that allows you to sue federal officials for a constitutional violation. If you want to sue state and local officials, you can invoke 42 U.S.C. 1983, but there is no Section 1983 claim against federal officials, and the Supreme Court has recognized such claims against federal defendants on three occasions and has repeatedly said it will not recognize new claims. But this plaintiff does have a claim against federal prison defendants because her case is close enough to one of the cases recognized by the Supreme Court as legitimate.

The case is Cicchiello v. Warden, Danbury Correctional Facility, a summary order issued on August 11. Plaintiff is an inmate a federal correctional institution. In her Eighth Amendment claim, she asserts that, as a 73 year-old inmate with a known heart condition, the 100 degree heat inside the jail poses a risk to her health. The case was dismissed because it does not fall within the three kinds of cases that the Supreme Court recognizes as legitimate against federal defendants.

In 1971, the Supreme Court ruled in the Bivens case that, even without a federal counterpart to Section 1983, the Constitutional implies a constitutional claim for civil rights victims suing federal defendants if there are no other remedies available to the plaintiff, such as an in-house administrative remedy, even if the administrative remedy will not get you the damages that a federal lawsuit would, and even if the administrative remedy does not allow for discovery and other procedural protections afforded to federal litigants. One of these days -- and I have been predicting this for years -- the Supreme Court is going to do away with Bivens claims altogether and leave it to Congress to enact a Section 1983 statute for claims against federal defendants. But until that happens, some Bivens claims will survive dismissal. This is one of them.

The Second Circuit (Menashi, Merriam and Cronan [D.J.]) says that plaintiff's case resembles Carlson v. Green, 446 U.S. 14 (1980, where the federal inmate asserted a constitutional claim that the jail was deliberately indifferent to serious medical needs. If plaintiff is able to amend her lawsuit on remand to assert that the jail knew she had a serious medical condition, then this lawsuit will be among the rare Bivens cases that will survive dismissal.  

To give you a sense how hard it is to bring a Bivens claim these days, plaintiff also claims that defendants subjected her to an unlawful strip search. There is no such claim in the Supreme Court arsenal that resembles this one. While one of the three positive Bivens claims in the Supreme Court said a plaintiff could sue federal defendants for a home search in violation of the Fourth Amendment, that case is not this one, as this one took place inside a federal prison, and everyone knows that jail cases are different than all other civil rights cases because courts defer to the expertise of prison officials. The strip search claim is dismissed for good. 

State and local law makes it illegal to videotape inside police station houses

The Second Circuit last year asked the New York Court of Appeals to weigh in on whether you have a right to record video inside the publicly accessible lobbies of police station houses. The New York Court of Appeals answered that question in the negative, and that ruling now allows the Second Circuit to reject a claim brought by public interest organizations.

The case is Reyes v. City of New York, issued on August 6. Videotaping and recording police activity is one way that civil rights organizations try to keep tabs on law enforcement. But, while everyone has video recording equipment in their pocket these days, that does not mean the law is there for them. It is not.

As I summarized this case back when it first reached the Second Circuit, "The plaintiff in this case sued the City of New York, challenging its policy against video-recording in police facilities, including station house lobbies. He posts his interactions with the police on YouTube, but these videos have gotten him arrested. He claims these arrests violate the First Amendment." Hence plaintiff's challenge to the rules prohibiting such videotaping.

The district court granted plaintiffs a preliminary injunction under state and local law, determining plaintiffs were likely to win their challenge to a NYPD policy prohibiting such video recording. Since the case raised an esoteric issue under state law, the Second Circuit asked the New York Court of Appeals to issue a ruling. The adverse ruling from New York's highest court requires the Second Circuit (Raggi, Kearse and Kahn) to vacate the preliminary injunction. 

Door Dash wins free speech case against New York City

New York City enacted a law requiring that third-party delivery platforms, like Door Dash, share customer information with the restaurants whose food they are delivering. Door Dash challenged this requirement as a First Amendment violation, under the coerced speech principle. Door Dash wins the case.

The case is Door Dash, Inc. v. City of New York, issued on August 5. Door Dash gets all the customer information when someone requests a food delivery. The restaurant only gets the customer's first name, last initial, and the order contents, i.e., what food the customer ordered. New York City passed a law in 2021 requiring that Door Dash share the customer information with the restaurants because customer data is "one of the most important tools restaurants can use to develop marketing strategies and customer relations." While Door Dash got all the customer details, the restaurants were unable to communicate directly with those customers as part of their business strategy. At least that was the logic behind the law, which amounted to a gift to the restaurant industry.

The First Amendment does not just protect street protesters and artists. It also protects companies and bars coerced speech. This case involves coerced speech, because the NYC law forced Door Dash to share certain business information with the restaurants. 

Under the case law, a state "may compel a commercial speaker to disclose (1) purely factual and uncontroversial information (2) about the terms under which his services will be available, so long as the disclosure is (3) reasonably related to the State's interest and (4) not unjustified or unduly burdensome." Not the clearest guidelines, but in sum, it means the government can defend such coerced speech in a commercial context only if the speech is "about the goods or services the speaker may offer." In practice, it means that laws requiring restaurants to disclose calorie counts and employers to issue anti-discrimination notices are legal. The Court of Appeals (Wesley, Carney and Park) further reasons:

The disclosure here—customers’ personal information—is not information “about” Marketplace. Information about Marketplace might, for instance, describe the commissions restaurants pay, how the Platforms rank and display restaurants, or the grounds on which they may deactivate a restaurant’s account. See, e.g., Uber Techs., Inc. v. City of Seattle, 168 F.4th 1202, 1216–17 (9th Cir. 2026) (holding, in the alternative, that an ordinance requiring third-party platforms to inform their couriers of the grounds for account deactivation satisfied Zauderer because the notice “concerns only the service provided”). The Customer Data Law, by contrast, compels the disclosure of each customer’s name, number, email address, delivery address, and order contents. § 20-563.7. Those are facts about third parties who use Marketplace, not about Marketplace itself.

Good news, bad news for police misconduct plaintiff

The Second Circuit has ordered a new trial in a malicious prosecution case upon finding the district court improperly excluded recordings that could have undermined the credibility of the plaintiff and his key witness. The court also rejected the police officers’ argument that they were entitled to judgment as a matter of law on the plaintiff’s unlawful-search claim

The case is McClarin v. City of New York, issued on July 13, more than a year following oral argument, demonstrating the complexity of this case. The case arose from a 2015 police investigation in Brooklyn, where officers received information that plaintiff was holding Samantha Miranda captive and abusing her. The officers entered plaintiff's apartment without a warrant, believing they were responding to an emergency. But Plaintiff and Miranda claimed the officers forced their way into the apartment and  pressured Miranda into implicating plaintiff. The charges against plaintiff were dismissed, and this lawsuit followed. Following trial, the jury awarded plaintiff $115,000 in compensatory damages and $775,000 in punitive damages.

The officers seek judgment as a matter of law, citing Rule 50, arguing the jury had no factual basis to rule for plaintiff because they responded to an exigent circumstances that dispensed with the need for a warrant. But the Court of Appeals (Kearse, Raggi and Kahn) affirms the verdict and says the jury had a basis to find for plaintiff because it could have found the officers did not treat the situation as an emergency. The officers spent considerable time dealing with unrelated suspects before going to plaintiff's apartment, and some officers acknowledged that they did not regard the situation as an "emergency" or "urgent." That's the good news for plaintiff. 

The bad news for plaintiff is the verdict is gone and there will be a new trial over an evidentiary ruling that the Second Circuit holds was an abuse of discretion. There were recordings of conversations between plaintiff and Miranda; the officers said these records could have impeached the testimony of plaintiff and Miranda because they included statements about Miranda's expected testimony and the possibility that she would receive money in exchange for her testimony. While the trial court excluded these recordings because they were not disclosed prior to trial, Rule 26 does not require pretrial disclosure of evidence that will be used solely for impeachment. What also helps the police on appeal is that the recordings gave defense counsel ammunition for attacking plaintiff's credibility, as plaintiff denied making certain statements to Miranda, who in turn gave testimony that placed an innocent gloss on their conversations. Had the jury heard the recordings, they might have resolved credibility issues against plaintiff, resulting in a verdict for defendants. 

We have an important ruling on malicious prosecution claims. The officers said plaintiff cannot win this claim because they had probable cause on other charges against him. That argument works in false arrest claims, but not malicious prosecution claims, the Court of Appeals holds. Probable cause for one offense does not necessarily defeat a malicious-prosecution claim involving another offense. In Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991), the Court of Appeals held that "the existence of probable cause to support one charge does not necessarily preclude a claim of malicious prosecution on another charge." In Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989), the Court held that where the defendant was convicted of disorderly conduct but acquitted of resisting arrest, the unfavorable termination on the disorderly-conduct charge did not preclude a finding of liability for malicious prosecution of the resisting-arrest charge.

Excessive force claim returns to the district court for further review

In this case, the plaintiff found himself back in jail after violating parole. While in jail, he claims, CO's beat him up, Hence this lawsuit asserting excessive force. The trial court denied defendants' motion for summary judgment, but the officers appealed to the Second Circuit, which teaches us again what happens when your civil rights lawsuit raises an esoteric issue that the courts have not definitively resolved in prior cases.

The case is Farrington v. Poole, issued on August 6. Excessive force claims come in two forms. If you are convicted of a crime and incarcerated at state prison, then it's an Eighth Amendment case, where you have to show the officer inflicted unnecessary and wanton pain that would amount to cruel and unusual punishment. To win such a claim, the plaintiff must show the officer subjectively and objectively intended to inflict such harm. But if you are a pretrial detainee, not yet convicted of anything, your excessive force claim is governed by the Fourteenth Amendment, which carries a more lenient standard for the plaintiff, who only has to show the force was purposely or knowingly employed in an objectively unreasonable manner. 

Here's the problem: plaintiff was once convicted of a crime, but he was eventually released from jail on parole. But he violated parole, pleading guilty to that violation at the parole hearing. So he returned to jail, but not state prison. He instead went to the Albany County Jail, where he claims the officers subjected him to excessive force. Parole violators who bring these claims are in a constitutional gray area. Some courts say their claims are governed under the more lenient Fourteenth Amendment. Other courts say these are really Eighth Amendment cases because they have already been convicted of a crime in the past. 

The Second Circuit (Cabranes, Livingston and Menashi) holds that, since plaintiff pled guilty to a parole violation, this is an Eighth Amendment case, not a Fourteenth Amendment case. In resolving the summary judgment motion in plaintiff's favor, the trial court said this was really a Fourteenth Amendment case, as it was not brought to the trial court's attention that plaintiff actually pled guilty to the parole violation. Since plaintiff's case must be resolved under the Eighth Amendment, the case returns to the district court to review the motion for summary judgment again under the more defendant-friendly legal standard. 

The Court of Appeals does not definitively decide whether inmates accused of violating parole who also claim excessive force are Eighth or Fourteenth Amendment plaintiffs. That issue will be decided in some future case. The Court does not have to resolve that issue here because plaintiff's case is clearly an Eighth Amendment case, as he pled guilty to parole violation. In concurrence, Judge Menashi surveys the district court rulings in this area and says that even those accused of violating parole, even if they are not yet convicted of violating parole, are Eighth Amendment plaintiffs, as they have already been convicted of some crime in the past, which is why they ultimately got parole to start with. 

2d Circuit upholds 70% reduction in attorneys' fees in successful civil rights case

A second round of litigation follows any jury verdict in a civil rights case. The plaintiff will file a motion to recover attorneys' fees from the losing party. This motion practice is not supposed to become a second major litigation, but sometimes it does, as the parties fight over the prevailing attorney's hourly rate and whether they spent too much time on the case. That happened in this case. 

The case is McDevitt v. County of Suffolk, a summary order issued on August 5. This police misconduct case yielded a jury verdict in the amount of $750,000, later reduced to $233,000. Plaintiff's counsel next sought nearly $800,000 in attorneys' fees, but the trial court only awarded $187,270, a steep reduction. Hence this appeal, relating solely to the attorneys' fees issue.

The reduction in attorneys' fees may seem excessive -- the trial reduced the amount by 70% -- but the Court of Appeals (Chin, Sullivan and Vacca [D.J.]) affirms. What you need to know is that the Court of Appeals rarely alters the district court's attorneys' fees rulings, which are reviewed under an abuse of discretion test. That test is deferential to the lower court, but the Supreme Court has said that appellate courts must be especially deferential to lower court attorneys' fees rulings on the basis that the trial court -- which presided over discovery and trial and motion practice -- is in a much better position to determine if the requested fees are too high, if trial court's claimed hourly rate is excessive, and whether any equitable considerations warrant a reduction in the fee award. The Court of Appeals does not have that intimate perspective on how the case proceeded below. That's why these appeals usually fail.

Here, plaintiff argued that the trial court unfairly reduced his hourly rate. Counsel requested $367.00 per hour but the district court assessed him at $300.00 per hour. Plaintiff's counsel arrived at the $367.00 amount by blending different hourly rates based on the tasks he was performing: $750 per hour for partner-level work, $450 for associate-level work, and $250 for paralegal work. But the Court of Appeals has never authorized such a calculation in setting an attorney's hourly rate, the Second Circuit holds. The better approach is to set your requested hourly rate at the attorney level and then seek a lower rate for tasks that a paralegal would normally do. In any event, hourly rates in the EDNY range from $300 to $450 for partner-level work. One judge in the EDNY last year raised the cap to $650 for partners, owing to inflation. The rate set by the district court in this case -- $300 per hour -- falls within the reasonable range, though at the lower end. That calculation is not an abuse of discretion.

What about the 70% reduction in hours? That was not an abuse of discretion, either, the Court of Appeals says. The reason is that plaintiff only prevailed on a few claims: excessive force and malicious prosecution against individual police officers and municipal liability against the County of Suffolk, though the latter claim yielded no damages. All of plaintiff's other claims failed. Under the Supreme Court's standards, courts may consider the overall degree of success in determining whether to modify the overall reduction. Altering the percentage reduction is not easy, even if the successful claim resulted in a large damages award. As plaintiff prevailed on only one of five federal claims in this case, against 12 police officers and two municipal entities, winning damages on only one claim, the Court of Appeals will not modify the reduction. On top of that, the trial court identified excessive and/or unnecessary billing entries, as well as vague time entries, which also warranted a reduction in attorneys' fees.

The Court of Appeals reassures us that a 70% reduction is not unheard of in the Second Circuit:

As for the 70% figure the district court settled on – which is an admittedly steep reduction – we note that such deductions are by no means unusual in this Circuit. For example, we affirmed a 50% across-the-board deduction in Matusick v. Erie County, 757 F.3d 31, 64 (2d Cir. 2014), due to a “lack of detail in the billing records” alone; a series of 50% deductions in In re Agent Orange Product Liability Litigation, 818 F.2d 226, 238 (2d Cir. 1987), due to “voluminous” billings on quasi-administrative items and travel time; and an 80% across-the-board deduction in Guardians Ass’n of Police Department of New York City v. City of New York, due to “facially excessive” hours and “vague[]” time records, 133 F. App’x 785, 786 (2d Cir. 2005). At the district level, courts in the Circuit also routinely apply deductions of 70% or more for suits with similar records of success and comparable billing defects.  

2d Circuit holds Supreme Court has changed the rules for reasonable accommodation cases

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.

The case is Bergin v. New York State Unified Court System, issued on July 15. Plaintiff wanted a religious exemption from her employer’s vaccination requirement. She asserted religious objections relating to fetal cell lines used to create the vaccine and her own bodily integrity. We saw these kinds of objections on a regular basis during the COVID era. While the state gave plaintiff a questionnaire that would evaluate the sincerity of her religious beliefs, she declined to answer most of the questions on privacy grounds. The court system denied the exemption request and fired plaintiff because she would not accept the vaccine. After the vaccine mandate was rescinded in 2023, plaintiff was reinstated. She then sued under Title VII, claiming the state failed to accommodate her religion. The district court granted summary judgment for plaintiff, a rare occurrence in employment discrimination cases, finding that plaintiff made out a prima facie case as a matter of law and the court system did not prove any undue hardship.

Under the Second Circuit’s old rules, plaintiffs had to show they (1) held a bona fide religious belief conflicting with a work requirement, (2) informed the employer of that belief, and (3) suffered discipline for failing to comply with the requirement. But Abercrombie changes that framework. Now, the plaintiff must show (1) she actually required a religious accommodation, (2) the employer's desire to avoid providing that accommodation was a motivating factor, and (3) she suffered an adverse employment action. Under the new framework, an employer's knowledge of the need for an accommodation is no longer an independent element of the prima facie case. Knowledge may support an inference of discriminatory motive, but motive and not notice is key after Abercrombie.

Here is the reasoning (citing from Abercrombie), explaining that the Court of Appeals (Raggi, Nathan and Furman [D.J.[]) has to comply with Supreme Court authority even if Second Circuit precedent held otherwise for decades:

“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.”

The Court further rejected plaintiff's argument that Abercrombie applies only to hiring decisions. Title VII's disparate-treatment provision governs both hiring and firing, and the Supreme Court's reasoning extends equally to termination cases.

The case returns to the Eastern District for reconsideration under the new legal standard. The trial court must determine whether the evidence would permit a reasonable jury to conclude the state denied Bergin's exemption because it sought to avoid providing a religious accommodation—not merely because it believed her application was incomplete or failed to establish sincerity.

Congestion toll program for NYC is legal

 The State of New York in 2019 implemented congestion pricing, where drivers have to pay a toll for each vehicle entering Manhattan below 60th Street (except for the FDR Drive and the West Side Highway). Suburban counties in upstate New York challenged this in court, arguing that it unfairly impacts residents from Orange and Rockland Counties. The Court of Appeals finds the congestion pricing thing is legal.

The case is County of Rockland v. Triborough Bridge and Tunnel Authority, issued on July 13. Orange County asserts a right to travel claim under the Constitution. Such a principle exists, though the Constitution does not explicitly say it. As the Second Circuit (Calabresi, Park and Merriam) notes, the source of this right "has proved elusive," but we infer it from various constitutional provisions, like the Privileges and Immunities Clause and the Due Process Clause. But in the end, "the right to migrate is firmly established."

That does not mean Orange County can proceed with the case, the Court of Appeals holds. Cases have long held that toll charges do not violate the right to travel if the toll is based on a fair approximation of state facilities (like a bridge or highways), it is not excessive, and it does not discriminate against interstate commerce. That test is from Northwest Airlines v. County of Kent, a Supreme Court case from 1994.

Orange County agrees the toll does not discriminate against interstate commerce, but its argument that the toll is not based on a fair approximation of the use of state facilities fails, as the toll proceeds are not required to be used in a specific way in order to benefit the toll-payers. The Court finds the toll "aims to benefit all toll payers by reducing traffic congestion" in that part of New York City. Nor is the toll excessive in relation to its benefits, as it does reduce traffic congestion. 

The equal protection challenge also fails, under the "rational basis" test, which says a government program that distinguishes between different people is legal if there is any rational justification for it. Really, anything goes under the rational basis test. The rational basis is that the money goes toward capital funding for mass transit, including subways, and to protect public health, presumably from too much traffic and pollution. As these are legitimate government interests, the equal protection challenge is rejected. 

Union worker wins disability discrimination appeal

The Second Circuit has reinstated a disability discrimination claim, holding the jury may find that an employer denied the plaintiff a reasonable accommodation necessitated by a serious vein condition that made it painful for him to complete his driving assignments without a modification to his work schedule. This ruling highlights a little-known principle under the ADA: the plaintiff's accommodation may entail placing him into someone else's position if that remedy aligns with the usual company practice.

The case is Raymond v. 1199 SEIU National Benefit Fund, issued on July 23. Plaintiff worked for a labor union, driving around the New York City metropolitan area educating union members about union pensions and benefits. But due to his vein condition, plaintiff's doctor said he could not sit for more than 30 minutes at a time, prompting defendant to remove from his service area the four facilities that were furthest away from plaintiff's home, but still requiring plaintiff to drive more than 30 minutes to other facilities. The district court dismissed the case on summary judgment. The Court of Appeals (Sack, Perez and Preska [D.J.]) brings the case back.

The Second Circuit notes that an accommodation must be "effective" even if it is not perfect. While the district court held in granting summary judgment for the union that its response to the doctor's note sufficed under the ADA because the union took action to reduce the plaintiff's workload, the Second Circuit says this was the wrong analysis. It is not enough that the employer took some action to assist the plaintiff; the employer must take effective action. In the end, the accommodation must allow the plaintiff to perform his essential job functions. The Circuit notes that it is often up to the jury to decide if the employer's accommodation was sufficiently effect to satisfy the ADA. 

Plaintiff's case is reinstated on this issue for several reasons. First, while the district court held the driving assignment requested by plaintiff to accommodate his disability -- known as Area J -- was not plausible because it was not materially different from the employer's accommodation of removing the four farthest facilities from plaintiff's assignment, "there is evidence in the record supporting an inference that Area J requires less driving," at least based on the maps in the record. This is the kind of factual detail that may get you a trial in an ADA claim. 

Moreover, despite defendant's claim that plaintiff was actually requesting that the union create a new position to accommodate his disability (the law generally does not require the employer to create a new position for that purpose), the jury may find that plaintiff was not actually asking management to do that. Instead, the record supports the inference that he was instead only requesting an new assignment while keeping his old job title. The ADA does not even define "position" or "assignment." 

More interestingly, the Court holds that even the position that plaintiff requested was already filled (the ADA does not normally require the employer to bump someone out of their position to accommodate the plaintiff), if company practice allowed for this kind of personnel management, then the accommodation may be reasonable. In other words, "if NBF frequently shuffles employees into non-vacant positions, then Raymond's reassignment might be a plausible accommodation." The only authority for this holding is a Supreme Court ruling, U.S. Airways v. Barnett, 535 U.S. 391 (2002), which held that while a requested accommodation may be unreasonable where it requires an employer to bypass its seniority system, that same accommodation may be reasonable if the employer frequently ignores the seniority system such that “one more departure . . . will not likely make a difference.”

Disability discrimination case is reinstated on appeal

The Court of Appeals has reinstated a disability discrimination claim against a New York City agency, holding that the plaintiff sufficiently alleges the City failed to accommodate his disability. But plaintiff loses his appeal to the extent he asserted a retaliation claim under federal and city law.

The case is Cangro v. New York City Department of Finance, issued on July 24. I will start with the retaliation claim. 

Plaintiff alleges that, after he complained to the EEOC about disability discrimination, the City retaliated by telling him that he was being investigated over his requests for disability discrimination and by denying him a promotion. The problem with the first allegation -- being advised that the City was investigating him -- is that there was no actual investigation and a City official apologized for telling him otherwise, and that it was apparently just a "rumor." While plaintiff claimed the phantom investigation was distressing and that it was intended to intimidate him, the Second Circuit says this was not an adverse action under the Supreme Court's recent decision in Muldrow v. City of St. Louis, which relaxed the adverse action test in holding the plaintiff need only assert "some harm" as opposed to a "material" harm, which was the Second Circuit's test for decades. But even under Muldrow, reporting a rumor to the plaintiff about an investigation is not enough to proceed with the lawsuit.

Plaintiff also asserts retaliation in the form of a promotion denial. If true, that's an adverse action under Muldrow. But not for plaintiff. The problem is the timing of the promotion denial. The Court of Appeals reasons it this way: "the intervals between the 2024denial of a promotion for Cangro and the two acts of Cangro for which the PSAC asserts NYCDOF was retaliating -- i.e., 11 months after his receipt of a right-to-sue letter and more than 22 months after his request for an accommodation--were too long to support any reasonable inference that Cangro was denied a promotion in retaliation for either of his acts." Timing may support a retaliation claim, but the plaintiff needs a tighter fit in a circumstantial evidence case like this. And, while plaintiff argues that defendant's reason for the promotion denial -- the lack of financial resources -- cannot be the real reason, that factual argument is unsubstantiated.  

The good news for plaintiff is the Court of Appeals (Lohier, Kearse and Park) finds he asserts a claim for failure to accommodate his disability, multiple respiratory conditions that informed his request to work remotely from home, as the commute to and from work through public transportation affected his breathing even when he wore a mask, and because his office did not have proper ventilation.  Ultimately, plaintiff's request was denied and he asserts the City did not participate in the necessary interactive process intended to work out an acceptable accommodation.

The district court held that plaintiff fails to assert a claim because he did not sufficiently argue that his proposed accommodation would allow him to perform his essential job functions. If the accommodation still does not allow the plaintiff to perform essential job duties, then it is not a reasonable accommodation. The Second Circuit reverses, and the case will proceed to discovery, for three reasons:

First, the complaint asserts that plaintiff was able to perform essential job duties while working from home over a two year period from 2020 through 2022, the Covid-19 era. Also, even after other workers were required to return to the office when the pandemic subsided, plaintiff was still able to work from home two days per week. And third, "when Cangro requested the accommodation of working some days from his him and some days in [the agency's] Staten Island office, 'Mr. Cangro's request was supported by his manager.'" That support helps plaintiff's claim. The Court explains it this way:

the word "supported" itself, in this context, is somewhat conclusory rather than factually descriptive. But at this early stage in the litigation, drawing all inferences in Cangro's favor, a manifestation of support by Cangro's manager for the requested accommodation supports the assertion that Cangro could, with that accommodation, perform the requirements of his job. 

This holding is good for plaintiffs. The Court of Appeals held the trial court held the plaintiff to stringent pleading requirements that fall outside the Iqbal/Twombly particularly test. And, the allegation that plaintiff was able to work from home for two years without incident suggests his subsequent accommodation request may have been reasonable, especially since his manager was on board with that request. 

Fourth Department sustains $500,000 retaliation verdict

The Appellate Division, Fourth Department, has sustained a retaliation verdict in favor of a state corrections employee who was disciplined and sent off to work in Siberia after he spoke out on malfeasance at the department.

The case is Montegari v. State of New York, issued on July 24. I briefed the appeal. A.J. Bosman, who also tried the case, argued the appeal. 

Plaintiff was a Captain of the New York State Department of Corrections and Community Supervision and a Deputy Chief of the Sex Crimes Unit (SCU) of the Office of Special Investigations. When plaintiff became the Deputy Chief, he reported overtime abuses and failure to properly investigate allegations concerning sex crimes and/or harassment. He claimed that, in retaliation for this speech, he next suffered harassment, including an administrative suspension, disciplinary charges based on false and manufactured charges, and a disciplinary suspension. After a Civil Service Law § 75 hearing, a hearing officer found that plaintiff was responsible for speeding on the Thruway, but otherwise found that all remaining charges were not sustained. Others in the department would also speed on the Thruway on company time but suffered no punishment.

Although the Hearing Officer recommended that plaintiff be restored to his position of Deputy Chief of the SCU, Annucci reassigned plaintiff to a correction facility that was more than three hours from plaintiff's residence. 

Thew jury returned verdicts in plaintiff's favor on the equal protection and First Amendment claims. The First Amendment verdict is sustained because the complaint asserts that plaintiff spoke on matters of public concern. The equal protection rationale is more complicated. The Fourth Department notes that the U.S. Supreme Court has held that government employees cannot bring "class-of-one" plaintiffs in the equal protection contest. That was the Engquist case from 2008. Class-of-one claims involve the plaintiff arguing they suffered governmental abuse or misconduct so awful that the plaintiff does not need to show he belongs to a protected class of individuals; hence the class-of-one. But there is a split in the Second Circuit on whether government employees can pursue selective enforcement claims, where you are singled out while the government looks the way for other wrongdoers. The Fourth Department adopts the reasoning in cases holding that you can bring such a lawsuit, reasoning:

We note that the Second Circuit has left open that question (see Hu v City of New York, 927 F3d 81, 100 n 5 [2d Cir 2019]) and that there is a split of authority in the district courts, as the parties here recognize (see Alaei v State Univ. of New York at Albany, 2024 WL 2941735, *15 [ND NY, June 11, 2024, No. 1:21-cv-00377(BKS/TWD)]). We are persuaded by the reasoning in Airday v City of New York (2020 WL 4015770, *2-6 [SD NY, July 16, 2020, No. 14-CV-8065 (VEC)]) that selective-enforcement claims survive after Engquist.

Defendants -- some of them the highest ranking officials in the New York correctional system -- also invoked qualified immunity. While they waived that (and other) arguments by not asserting them at trial, even if preserved, that objection fails because the Second Circuit held in 1980 that malice-based selective enforcement claims may be brought under the Equal Protection Clause making this principle clearly-established for qualified immunity purposes. 

 

Circuit reaffirms no appeal from the denial of a Rule 59 "weight of the evidence" motion

This disability discrimination case went to trial, but the plaintiff lost and his former employer won. Post-trial, plaintiff filed a motion for a new trial pursuant to Rule 59, arguing that the verdict in defendant's favor was against the weight of the evidence. The trial court denied that motion, so plaintiff appeals. Except that plaintiff has a problem: the Second Circuit, at least in this instance, is the problem.

The case is Raymond v. 1199 SEIU, issued on July 23. There are many ways to challenge an adverse verdict. The most common method is to argue post-trial that the evidence is so overwhelming that the case should not have even reached the jury. Defendants often make that argument in challenging the verdict as a whole. That's a motion under Rule 50 for judgment as a matter of law. The losing side can also move for a new trial under Rule 59, claiming the verdict was agains the weight of the evidence. That motion is rarely granted and turns on the trial court''s judgment that there just was not enough evidence for the winning side to prevail and we are going to have a do-over.

If the trial court denies the Rule 59 "weight of the evidence" motion, the next stop is the Court of Appeals. But here is the problem. Under Second Circuit law, if the trial court sets aside the verdict under Rule 59, that order can be appealed. If the trial court denies the Rule 59 "weight of the evidence" motion, that ruling cannot be appealed. 

All the other circuit courts allow you to appeal from the denial of a such a motion. But not the Second Circuit. Judge Sack notes the anomaly posed by this distinction:

the reviewability of a Rule 59(a) weight-of-the-evidence decision depends on the outcome of the district judge’s decision: If the district judge overturns the jury verdict on weight-of-the-evidence grounds, it is reviewable; if the judge upholds a jury verdict over a losing party’s motion that the verdict contravenes the weight of the evidence, that decision is not reviewable. That is, if a district court denies a Rule 59(a) motion to vacate a verdict, we cannot review that denial.

Every so often, however, the Second Circuit says that such motions under Rule 59 are appealable. But then a different panel will hold otherwise. Judge Sack notes that anomaly as well:

Our caselaw on this issue is somewhat confounding. Just last year, we concluded that there is “ambiguity in our precedents” regarding whether a district court’s denial of a Rule 59(a) motion for a new trial on weight-of-the-evidence grounds is reviewable. See Ortiz v. Stambach, 137 F.4th 48, 71 (2d Cir. 2025) (collecting cases). We doubt, though, that our precedents can be viewed that way. Instead, we conclude that our precedents firmly establish that such a denial is not reviewable on appeal. 

In this ruling, the panel (Sack, Perez and Preska [D.J.]) holds firm on the rule that you cannot appeal from the denial of a Rule 59 "weight of the evidence" motion, holding that the Court therefore has no appellate jurisdiction over this portion of plaintiff's appeal. Judge Sack says that's the rule in the Second Circuit, and the only way it's going to change is if the Supreme Court or an en band panel of the Second Circuit directs otherwise. The verdict on the disability discrimination verdict stands. 

 

Excessive force verdict for the police is upheld on appeal

The optimism associated with starting a trial will collapse when the jury returns an unfavorable verdict. When that happens, we think about the appeal, and a new round of optimism kicks in. But it is quite difficult to overturn a verdict, particularly on factual grounds, as the Court of Appeals will defer to the jury's credibility assessments. That is the problem for plaintiff in this appeal.

The case is Chapdelaine v. Desjardin, issued on July 2. This is an excessive force claim where plaintiff alleges the police used too much force and authority in restraining her after they came to the house upon a complaint that plaintiff had assaulted an elderly victim, a friend of the family. Plaintiff alleged the police knocked her to the ground while trying to place her in handcuffs. 

Excessive force claim are difficult to resolve on the papers alone, as the parties often provide conflicting accounts, requiring a jury trial. This is one of those cases, and the jury ruled in favor of the police. But that's why we have the Court of Appeals: the losing side can argue that the evidence was so overwhelming in their favor that the jury had no choice but to rule for them. But while that argument is available to you, that argument is difficult to win.

The jury is tasked with deciding who is telling the truth. There are no real legal standards guiding how to assess credibility, thought the judge will instruction the jury on this point in the jury instructions, ultimately telling the jury to use their common sense and to pay attention to consistencies and inconsistencies and facial expressions on the witness stand. The jury decides who is telling the truth, not the judge.

The Second Circuit (Chin, Lee and Robinson) finds the jury was able to find for defendants. It did not have to find for them, but it did so, and it had a basis to do so in concluding that plaintiff had charged the police, who knew that plaintiff had previously threatened others with weapons, and that plaintiff let herself fall to the ground and her cries were "theatrical for the cameras." I am sure plaintiff strongly disputes this version of events, but the jury was free to reach those conclusions. The verdict is affirmed.  

No malicious prosecution claim where criminal charges were dismissed in a compromise

This police misconduct lawsuit alleges that plaintiff was falsely arrested in a domestic dispute on Thanksgiving Day in 2018. It all happened in Connecticut. The complainant said that plaintiff pushed a houseguest to the floor. When the police showed up, plaintiff got into an argument with the officer, who smacked plaintiff's hand away when she raised her hand, and plaintiff fell to the ground, where she was handcuffed. Plaintiff was arrested for assault of an elderly victim but the charges were ultimately dismissed. Judgment for the police.

The case is Chapdelaine v. Desjardin, decided on July 2. Plaintiff's malicious prosecution claim was dismissed on summary judgment. The argument on appeal was that if the police lacked probable cause to arrest, then they may be liable for malicious prosecution. You can bring such a claim if the arrest was in fact lacking in probable cause and the case got dismissed without a conviction but -- and this is crucial -- cases hold that if the case was dismissed or withdrawn as a result of a calculated decision based on a compromise, then there is no malicious prosecution claim. When you have such a compromise, then it's not a true dismissal suggesting the plaintiff was innocent of the charge. 

In other words, the underlying criminal charge must have ended favorably for the plaintiff. That wrinkle on malicious prosecution claims knocks out plaintiff's claim because the charges against her were dismissed as a result of a compromise involving the plaintiff attending mental health treatment in exchange for the charges being dismissed. The Second Circuit reasons it this way:

The underlying state criminal matter was pending against Chapdelaine for nearly five years and the court's dismissal of the charges following her completion of a one-day diversionary program reflects a court-ordered compromise. The Connecticut Superior Court judge explained on the record that -- based on the five-year length of the case without resolution and Chapdelaine's efforts to attend mental health treatment during the pendency of the case -- the criminal charges would be dismissed contingent upon Chapdelaine's agreement to and completion of a one-day supervised diversionary program. She indeed agreed to the compromise and completed the program. 

Under these circumstances, the dismissal of Chapdelaine's criminal charges was not a favorable termination for purposes of a malicious prosecution claim. The leading case on this issue is the recent Carruthers v. Colton (2025), which held that proceedings ending in a compromise, and in particular plea dispositions, are not really the kind of "favorable termination" that allow you to sue for malicious prosecution.  

Second Circuit sustains FLSA verdict

The Court of Appeals has sustained a bench verdict in favor of FLSA wage-and-hour plaintiffs who claimed their employer denied them proper wages and then retaliated against them after they objected to this illegal treatment.

The case is Vazquez v. 142 Knickerbocker Enterprises, a summary order issued on July 8. I assisted in briefing the appeal. The case was brought by Catholic Migration Services and Main Street Legal Services, operated by CUNY Law School, my almer mater. 

The plaintiffs worked at a car wash in Queens. On the wages claim, the Court says, "During the relevant period—November 2007 through April 2014—the applicable minimum wage was $7.15 per hour. See NYLL § 652(1). On July 24, 2009, the minimum wage increased to $7.25 per hour. On December 31, 2013, it increased to $8.00 per hour. State law requires employers to pay employees one-and-one-half times the regular hourly rate for all hours exceeding 40 per week. The evidence at trial supported the conclusion of the district court that [defendant] Azoulay regularly underpaid the plaintiffs."

Plaintiffs proved their case in part through their own testimony, since Defendants' payroll records were incomplete. While management is required to maintain good records, when they don't the trial courts can look elsewhere to prove the plaintiff's earnings. The Court (Lynch, Menashi and Rakoff [D.J.]) further found that management appropriated the plaintiffs' tips. We call that tip-stealing.

We also have a retaliation claim, not uncommon in FLSA and State Labor Law claims. After the plaintiffs brought this lawsuit, Azoulay "wrote to the court indicating that he had reported the plaintiffs to the IRS, the [Social Security Administration], the FBI, and the New York Attorney General’s office for criminal violations. On appeal, Azoulay argues that his actions were not retaliatory but a 'reasonable attempt to meet legal obligations during litigation.'" You read that correctly, the defendant admitted this retaliation to the court, While defendant tried to explain away his actions, the trial court was not obligated to accept that defense, and the trial court's findings on whether defendants' actions were retaliatory will not be upset on appeal unless that finding is completely off-the-wall. Since federal judges issue rulings that usually find support in the record or resolve disputed factual inferences, the retaliation verdict is sustained.

What the Supreme Court did in the transgender athletics case

The Supreme Court has ruled that the states may prevent transgender girls from competing with other girls on the soccer, basketball and other teams. This ruling interprets Title IX (the educational discrimination statute) and the Equal Protection Clause of the U.S. Constitution.

The case is West Virginia v. BPJ, issued on June 30. The transgender/sports question has found its way into the culture wars. It used to be gay rights, but those issues -- at least in the marriage and employment context -- are settled. The Court ruled in 2015 that the Equal Protection Clause requires the states to recognize same-sex marriage, and it ruled in 2020 that Title VII of the Civil Rights Act of 1964 makes it illegal to fire gay and transgender employees. 

But Title IX sports is a different issue, the Court says, because when the statute was enacted in 1972 and then amended over the years, Congress intended that the sex assigned at birth is your sex for purposes of high school sports. In addition, says Justice Kavanaugh writing for the majority, regulations issued under Title IX recognize that biological differences between men and women will have an effect on competitiveness and safety if we are talking about contact sports. As for safety, consider the injury risks if we allow transgender girls compete in girls' sports. As for competitiveness, Kavanaugh says, consider how sports is a zero-sum game, where roster spots are finite and a biological male may take the place of someone else on the girls' soccer team.

The equal protection argument carries a different analysis, but the same result. Under equal protection principles, discrimination on the basis of sex is only legal if the government advances an important justification for the discrimination, and the policy in placed is substantially related to that legitimate interest. We call that "intermediate scrutiny." As opposed to "strict scrutiny" in reviewing racial distinctions created by statute or regulations. The Court says that student safety and competitive fairness principles represent important governmental interests, at least when it comes to high school sports. And the refusal to allow transgender girls to play on the girls' teams is substantially related to that governmental interest. May sex-based classifications fails under intermediate scrutiny, but not this one. Kavanaugh positions himself as an authority on youth sports, and recall he coached girls' basketball before he joined the Supreme Court. He recognizes the joys and anguish of high school sports and says that "anyone who thinks that [soccer, basketball, field hockey, lacrosse, and ice hockey] are not contact sports has not witnessed a game recently." Take it from Kavanaugh, these sports are not for the faint of heart.

A brief concurrence from Justice Thomas makes his clear his skepticism of all the issues relating to transgender status, stating that "'gender dysphoria' is a mutable mental state that is the object of psychiatric treatment," and that "Men and boys with gender dysphoria are not women or girls, even if they think they are." To play around with the definitions for boys and girls and man and woman is to "obscure reality" and to "lie to the public and cease to treat or fellow citizens 'as equals.'" It's a "no" from Justice Thomas on this issue.

Justice Sotomayer dissents on the equal protection issue, claiming the majority is jumping the gun and should have remanded this case for more fact-finding on the legal and factual issues. 

This litigation implicates deeply sensitive, contentious, and evolving issues. These circumstances demand exercising judicial restraint, not rushing to answer conclusively difficult questions without sufficient evidentiary development. In opting otherwise, the majority extends great sympathy to those it favors: the young cisgender girls and women who play sports. I share that sympathy. Playing sports can lead to benefits that are immeasurable, and many are understandably invested in ensuring that competition stays fair and safe. Because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions, I respectfully dissent. 

 

What the Supreme Court did in the birthright citizenship case

The Supreme Court has ruled that the Fourteenth Amendment ensures that everyone born in the United States -- even if their parents are not authorized to be in this country -- are American citizens. This ruling resolves a contentious political and legal debate that accelerated when Donald Trump became President and said that the children of "illegal" immigrants are not citizens.

The case is Trump v. Barbara, issued on June 30. The Fourteenth Amendment, enacted following the Civil War, states as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." What does this mean? For the longest time, it was assumed that if you are born here, no matter who your parents are (with few exceptions, such if your parents are diplomats), then you are a citizen. But many legal issues that we thought were settled are not settled. For instance, the Second Amendment lie dormant for decades until the Supreme Court clarified in 2008 that it protects an individual right of gun ownership. 

Chief Justice Roberts writes for the 6-3 majority, though bear in mind that Justice Kavanaugh rules in favor of citizenship but not based on his interpretation of the Fourteenth Amendment but a federal statute. So, on the constitutional issue, this is a 5-4 ruling, remarkably close for an issue that most of us took for granted until Trump issued an Executive Order on January 20, 2025, the first day of his second term, stating that the children of parents who are unlawfully or temporarily present in the United States do not qualify for citizenship.

Roberts reviews the historical record and finds that under English common law (including case law and related legal precedents), children "born within the [sovereign's] dominions owed a natural "allegiance" to the sovereign who protected them at birth. This was the case regardless of how "momentous and uncertain" their presence. These children were "natural born subjects" under the English crown. As Roberts sees it, "this view crossed the Atlantic with the colonists -- and was adopted with little fanfare after the [American] Revolution, as "subjects' of the sovereign became 'citizens' of the States." This was true in all 13 original states. Scholarship in 1838 held that by "the doctrine of natural allegiance," all "who were born within the jurisdiction of a State" were citizens. 

Moreover, Roberts observed, once immigrants started coming to the United States after its founding, emigres from the Old World were "assured that their children would be American citizens by birth alone." A seminal case from New York in 1844 held as such. This principle was colorblind, notwithstanding the Dred Scott decision in 1857 that said Blacks are not American citizens; that ruling was overturned by the Fourteenth Amendment. The Citizenship Clause, set forth in the Fourteenth Amendment, "mirrored the common law's criteria for citizenship." 

What about the "subject to the jurisdiction" language in the Citizenship Clause? That language is not clear on its face and provides an opening for opponents to argue that many foreigners, who came to the U.S. without authorization, cannot give birth to citizens here. As Roberts sees it, under Nineteenth Century dictionary definitions (a common source for the Supreme Court in divining the meaning of statutes and constitutional provisions), "to be 'subject to' the jurisdiction of the United States ... is to 'live under' its 'dominion.'" He adds, "The Citizenship Clause uses jurisdiction in its ordinary sense -- referring to the power of the United States to govern those within its territory." That would necessarily include so-called "illegal" immigrants and others here temporarily.   

Justice Thomas dissents, primarily arguing that the Citizenship Clause was only intended to benefit the newly-freed slaves. Justice Alito writes in dissent that "the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country," Alito then offers an extensive history of "illegal" immigration in the United States, particularly from the 1970s onward, concluding that "the Court's interpretation preserves a powerful incentive to enter or remain in this country illegally," as "[i]mmigrants naturally prefer affluent countries where economic opportunities are available," and that other than Canada, "the United States will be the only affluent nation where birth alone is enough to establish citizenship." Alito concludes that the majority ruling is "a mistake that will seriously affect the country's future." 

National origin discrimination claim fails despite manager's impatience with plaintiff's accent

The Court of Appeals has held that an employee with a strong foreign accent cannot sue for wrongful termination after her supervisor angrily complained that he could not understand her and ultimately terminated her employment.

The case is Matthew v. JP Morgan Chase, a summary order issued on June 30. I briefed and argued the appeal. 

This case was dismissed on a Rule 12 motion, so the facts in the Complaint, along with the plaintiff's affidavit, stated as follows: "Matthew alleged that her supervisor, district manager John Wolf,
'complained that he couldn’t understand anything [Matthew] was saying because of [her] accent,' but that her other supervisors did not have similar complaints." Plaintiff alleged that Wolf “informed [her], in nearly every single conversation that [they] had, both in person and over the phone, that he could not understand [Matthew] because of [her] Trinidadian accent,” and that “Wolf expressed clear anger and annoyance to [Matthew] that [she] spoke with an accent.”

Since Wolf played a role in plaintiff's termination, she sued for national origin discrimination. The district court and the Court of Appeals (Lynch, Menashi and Bianco) affirms, and the case is over. We argued that Wolf's hostility was enough to assert a plausible discrimination claim, especially since other managers did not give plaintiff a hard time over had accent. The Court of Appeals disagrees, reasoning as follows:

While mistreatment related to accents can have “a nexus to” national-origin discrimination, Zheng-Smith v. Nassau Health Care Corp., 2021 WL 4097316, at *3 (2d Cir. Sept. 9, 2021) (summary order), allegations concerning the former must still “allow the court to draw the reasonable inference that” the alleged mistreatment was motivated by invidious discrimination. Construed liberally, the allegations here suggest, at best, that Wolf had difficulty understanding Matthew because of her accent on multiple occasions and was consequently angry or annoyed at Matthew due to that difficulty. As the district court noted, she does not allege that he mimicked or mocked her or that he used derogatory words or phrases during these conversations. Nor has Matthew “demonstrate[d] circumstances giving rise to an inference of discrimination by alleging that [s]he was treated less favorably than similarly situated employees.”

The Second Circuit has not yet published a precedential ruling on when hostility or anger toward the plaintiff's accent is enough to support a discrimination claim. This ruling suggests the plaintiff cannot simply allege that a manager fixated on the plaintiff's accent, even if other managers did not have a problem with it.

Threat to impose costs under arbitration clause may be retaliatory

The Appellate Division holds that an employer violates the New York State Human Rights Law when it threatens a discrimination plaintiff that his SDHR charge must be litigated in arbitration and that, if the plaintiff does not pursue that route, he may be subject to costs and attorneys' fees.

The case is In the Matter of Charter Communications v. Eisen, a Fourth Department ruling issued on June 26. This case went to an evidentiary hearing at the SDHR, which ruled in the plaintiff's favor, awarding him $7,500 for pain and suffering and imposing a $30,000 fine on the employer. Charter appealed this ruling to the Fourth Department, which sides with the SDHR and upholds the finding of liability and damages, as well as the fine.

Here are the facts:

After he was fired from his employment with petitioner, complainant filed a complaint with SDHR alleging age discrimination. Petitioner responded by sending a letter to complainant in September 2019 stating that, because of a binding arbitration agreement between the parties, complainant could not pursue his claim against petitioner through a court action. Petitioner advised complainant to "be aware" that the arbitration agreement entitled petitioner to costs and fees, including attorneys' fees, incurred if petitioner was forced to seek court action to compel complainant to resolve his dispute through arbitration instead of litigation. Petitioner then filed the instant complaint alleging age discrimination and retaliation. Thereafter, while the complaint was pending, petitioner sent complainant two additional letters in June 2020 and March 2021 asking complainant to withdraw his complaint with SDHR because of the arbitration agreement.

It is not uncommon for corporate defendants to tell the plaintiff that the claim falls within the arbitration clause. What probably made the difference was Charter's threat that plaintiff might have to pay costs and attorneys' fees if he did not proceed to arbitration. Under the legal standard, such threats "could have dissuaded a reasonable person from" pursuing the discrimination complaint.