No hostile environment in school harassment case

Student harassment cases parallel workplace harassment cases in that both require evidence that the plaintiff endured a hostile environment. It's harder to win cases against public schools under Title IX because you have to show the school was deliberately indifferent to known harassment, as opposed to the more lenient burden in Title VII harassment cases, which requires proof that management was negligent in handling the problem. But let's talk about the hostile environment requirement.

The case is R.S. v. Hastings on Hudson School District, a summary order decided on April 9. The ninth-grade student, S.S., received three emails during a 10-day period. These emails were most offensive. As the Second Circuit (Hall, Raggi and Sack) puts it:

Originating from the email account of M.X., a classmate, the first message was profane and disparaged S.S.’s appearance; the second (sent the next day) contained a crude sexual request; and the third declared, in explicit terms, the author’s intent to have sex with S.S. S.S. promptly reported the emails to School District staff, including defendant Assistant Principal Michael Rossi, who had been informed of similar emails sent to at least one other female student from the same account at about the same time. School District staff discussed the emails with S.S.’s parents and questioned M.X., who denied sending the emails and claimed other students had gained access to his email password.

The courts borrow the analysis from Title VII employment cases in deciding whether the sexual harassment at school was severe or pervasive enough to create an hostile educational environment. The Supreme Court came around to recognizing peer harassment claims in the late 1990s, and by now there are enough student harassment cases that provide guidance under Title IX. This decision cites a few disgusting cases of student assaults and harassment from the district courts in the Second Circuit that sufficed to violate Title IX. But this particular case is not pervasive enough for the plaintiff to win (even assuming the school was deliberately indifferent to the harassment).

"While lamentable," these emails "do not rise to the level of actionable sexual harassment under federal law, the Second Circuit concludes. The Court of Appeals reflects the plaintiff's claim that she endured a "months-long campaign of intimidation and humiliation." Three emails like this are not enough, and the Second Circuit will not take into account any of the non-sexual arguments that R.S. had with M.X.

For the Title IX mavens out there, the full story about the deliberate indifferent element of this case is found in the district court ruling, found on Google Scholar. Judge Gardephe ruled in a lengthy footnote that the district was deliberately indifferent to the harassment. Here is a snippit:

Courts have found that a school does not act with deliberate indifference toward harassment where it "promptly investigates, institutes corrective measures, and subsequently continues to monitor the situation." Here, the Court cannot find as a matter of law that the District took any such steps. There are genuine factual disputes as to how promptly the District took obvious and basic steps such as questioning M.X.; interviewing the students identified by M.X. as having access to his account; changing M.X.'s password; and disabling M.X.'s District e-mail account. Moreover, there is no evidence that the District directly asked M.X. whether he sent the offensive e-mails to S.S.; that it took any steps to gather and preserve information about use of its network that might have assisted in determining who sent the e-mails; or that it monitored the use of M.X.'s account after the first inappropriate e-mails were sent from the account.

There is also evidence that the District chose to respond much more quickly and thoroughly to other incidents of harassment. For instance, Rossi testified that when the word "nigger" was found spray painted on a locker, it was photographed and then removed within an hour, and the police were called within a day. The school brought in a former student who was African-American to speak to the student body, and also brought in a facilitator from the U.S. Department of Justice to meet with students. Similarly, when a pornographic picture was e-mailed to the school librarian five or six years earlier, the District traced the e-mail within a week, and identified and suspended the student responsible. Here, the District did not seek to obtain or preserve network system logs that could have facilitated tracing the offensive e-mails until months after the e-mails were sent. By that time, the logs had been destroyed.

This is what Iqbal "implausibility" looks like

When the Supreme Court decided in Ashcroft v. Iqbal, 129 S.Ct. 137 (2009), that "plausibility" would be the standard governing motions to dismiss, lawyers worried that trigger-happy courts would more closely scrutinize legitimate claims and throw them out because they were not plausible in a judge's subjective assessment. That may be, but Iqbal plausibility also allows the courts to throw out claims that are simply implausible and can never be won.

The case is McCracken v. Brookhaven Science Associates, a summary order decided on May 12. Plaintiff filed this case pro se. He claims that experiments conducted at Brookhaven National Laboratory released radiation that gave him thyroid cancer.

The Court of Appeals (Lynch, Miner and Trager [D.J.]) says that claims like this are not implausible on their face. But it does not survive the Iqbal plausibility test. The Court says that plaintiff does not support this claim with any specific factual allegations "to draw the inference that Brookhaven was liable. Appellant never worked at Brookhaven; he alleges only that 'he has for thirty-three (33) years resided in the vicinity of' Brookhaven; and he gives no hint in his pleading of any fact suggesting that Brookhaven, or any other defendant for that matter, was responsible for the alleged leaks." In a footnote, the Court notes that "Appellant’s closest residence to Brookhaven was over twenty miles away in Commack, New York, where he claims he lived for four years."

While most plaintiffs are allowed to amend their dismissed complaints to cure any defects, the Court of Appeals denies that opportunity to plaintiff. The Court explains, "courts must dismiss in forma pauperis complaints that are frivolous or fail to state a claim." Basically, the Court of Appeals does not believe that plaintiff will ever be able to prove his case and that the complaint on its face is implausible as a matter of law.

No individual liability in ADA retaliation claims

Can you sue an individual under the Americans with Disabilities Act? The Second Circuit says you cannot, borrowing its analysis from cases interpreting Title VII.

The case is Spiegel v. Schulmann, decided on May 6. Plaintiff was fired from his job at a karate school, allegedly because he was obese. When he told management he was going to file a charge of discrimination, defendants fired Spiegel's friend, Schatzberg, and sued both of them in state court for interfering with the karate school's contracts. Plaintiffs then sued Schulmann for retaliation under the ADA.

At first glance, the ADA allows plaintiffs to sue the individual for retaliation. The ADA's retaliation provision reads:

[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

See that? It says "no person" shall retaliate. But the statutory text is not the last word. The ADA also says that "the powers, remedies, and procedures set forth" under Title VII apply to the ADA. However, although ADA claims are generally resolved under Title VII principles, the plain text of Title VII's retaliation provision does not carry the same language as the ADA's retaliation provision. Title VII reads:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis supplied).

While Title VII says an employer cannot retaliate, the ADA says "no person" shall retaliate. Although the statutes contain different language about who cannot retaliate, the Second Circuit says the Title VII analysis still applies. The Court of Appeals has long held that Title VII does not authorize individual liability (Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)). And so while the Court of Appeals notes that its holding in this case "is arguably contrary to a literal reading of" the ADA's retaliation provision, applying Tomka to ADA claims, the Court of Appeals (Hall and Livingston) knocks out the individual retaliation against Schulmann.

If you handle sexual harassment cases in NYC, you'd better read this

Sexual harassment law under Title VII changed when the Supreme Court held in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), that the employer can win the case if it promptly investigates and remedies supervisory harassment. That is also the law under the New York Human Rights Law, which is co-terminus with Title VII. But that is not the law under the New York City Human Rights Law.

The case is Zakrzewska v. The New School, decided by the New York Court of Appeals on May 6. This case originated in federal court, which certified the case for interlocutory appeal with the Second Circuit on the ground that it was not clear whether the Faragher affirmative defense applied under the New York City Human Rights Law. in turn, the Second Circuit threw up its hands, certifying this state-law issue for the New York Court of Appeals.

Under the plain terms of the City law, the employer is automatically liable when a supervisor sexually harasses a subordinate. If management takes the complaint seriously, the plaintiff may recover fewer damages, but unlike Title VII and the New York State Human Rights Law, prompt remedial action does not absolve management of liability. Under the City law,

[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision one or two of this section only where:

(1) the employee or agent exercised managerial or supervisory responsibility; or

(2) the employer knew of the employee's or agent's discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee's or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or

(3) the employer should have known of the employee's or agent's discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.

The State Court of Appeals does not provide extensive analysis. The terms of the law are clear. Management is automatically liable for supervisor sexual harassment. This is how the City Council wanted it, according to the legislative history. While the defendant in this case argued that this law cannot circumvent the Faragher scheme that applies under the New York State Human Rights Law, the judges here rule that the City law does not violate state policy because it "merely creates a greater penalty for unlawful discrimination." The defendant further argues that the City law impedes deterrence of workplace harassment and therefore thwarts public policy because the affirmative defense under Faragher was designed to stop harassment before it happens. But, the Court of Appeals holds, this is a policy choice legitimately expressed by the City Council. The City law is legal.

Caught in the crosshairs of a legislative amendment

Did you know that it's illegal in New York to deny someone a job because of his criminal record? It's been the law since 1976. The law said precisely that. It is unlawful to reject an application or license for employment because of a criminal record (with some exceptions). In 2007, the state legislature amended the law to also say that it's unlawful to fire someone because of his criminal record. This amendment created a dilemma for a plaintiff who was fired prior to the amendment in 2007.

The case is Noble v. Career Education Corp., a summary order decided on April 29. I briefed and argued the appeal, so I'll try to be objective here. Noble's case raised an interesting issue of statutory construction. The plain terms of the 1976 law did not protect him because he was fired prior to the 2007 amendment which would have protected him. But two of the four appellate divisions in New York seemed to hold that the pre-2007 law also covered post-hiring decisions and therefore outlawed terminations because of a criminal record. The First Department in Manhattan came right out and said it: "The same public policy that prohibits discrimination in hiring on the basis of a criminal record prohibits discrimination in terminating employment on the basis of a criminal record."

On the other hand, if the state legislature in 2007 amended the law to protect people from conviction-related terminations, doesn't that mean that the 1976 law was never supposed to reach that far and the appellate rulings over the years that broadly interpreted the law had overreached? Then again, maybe the 2007 amendment simply codified the existing case law that had already prohibited wrongful discharge. The New York Court of Appeals never got around to that issue, so the Second Circuit took up that issue on its own.

The Court of Appeals (Raggi and Hall) rules for the employer, strictly construing the 1976 law to prohibit only failure to hire. As for the state appellate rulings that went the other way, the Court of Appeals finds that the cases are not that clear, and that the Fourth Department seems to have gone both ways on the issue. The Third Department, on the other hand, did interpret the 1976 law to only prohibit failure to hire. The Second Circuit also interprets the 2007 amendment (and the sponsor's memorandum accompanying the amendment) to mean that the law was never supposed to protect plaintiffs like Noble, until now. For Noble, it's too late. The law is not retroactive, and the case is dismissed.

No copyright infringement in sneaky cookbook for kids

Cookbooks are like exercise equipment. We all have them, but we do not always use them. Some of us have them and do not use them at all. That doesn't mean we don't buy them. Cookbooks are a lucrative market for publishers. Which is why The Sneaky Chef, Inc., sued Jessica Seinfeld.

The case is Lapine v. Seinfeld, decided by summary order on April 28. This is a copyright infringement case. Plaintiff published a cookbook called, The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals. The idea was that kids need to be tricked into eating healthy food. Four months later, Jessica Seinfeld (Jerry's wife) published Deceptively Delicious: Simple Secrets To Get Your Kids Eating Good Food, which also focused on how to sneak vegetables into food. Did Seinfeld commit a copyright violation?

No, says the Court of Appeals (Raggi and Hall). The books carry similar concepts, but "Stockpiling vegetable purees for covert use in childrens' food is an idea that cannot be copyrighted." Ideas, concepts and processes are not covered under the copyright law. The Court adds:

to the extent the two works have general and abstract similarities – including their vaguely similar titles and inclusion of illustrations of prepared dishes, health advice, personal narrative, descriptions of how to make purees, instructions for preparing dishes, and language about children’s healthy eating – the district court correctly concluded that these elements do not raise a fact issue for trial because they are “scènes à faire,” or “unprotectible elements that follow naturally from [the] work’s theme rather than from [the] author’s creativity.”

In addition, both books contain a different concept and feel. The Sneaky Chef contains extensive discussion of child behavior, food philosophy and parenting. The Seinfeld book does not. Seinfeld's book is also more colorful with more photographs. The Sneaky Chef also seems to be more sophisticated when it comes to cooking.

Iqbal plausibility and the First Amendment

When the Supreme Court handed down the Iqbal decision in 2009, it changed the pleading standard for attorneys filing lawsuits in federal court. It is not enough to plead a claim for relief. You have to plead a plausible claim. The Court of Appeals finds that a First Amendment claim against New York City is plausible, and it therefore reinstates the lawsuit.

The case is Kregler v. City of New York, decided on May 3.

Here is the standard under Iqbal, a standard that plaintiffs' lawyers are going to have to memorize: “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Aschroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

Kregler is a City firefighter who wanted to be a City Marshal. He publicly announced his support for a candidate in a heated political campaign. He alleged in his lawsuit that "employees of the New York City Fire Department induced contacts at the Department of Investigation to prevent his appointment as a City Marshal." This case poses the question: is Kregler's claim sufficiently plausible to survive a motion to dismiss?

The answer is Yes, the Court of Appeals (Calabresi, Kearse and Jacobs) holds in a summary order:

This allegation is neither a legal conclusion nor asserts a claim that is implausible on its face. Kregler’s claim that political animus caused certain defendants to lie about or mischaracterize Kregler’s disciplinary record, and that that same political animus caused other defendants to accept their misrepresentations is not implausible on its face and therefore not susceptible to a motion to dismiss.

The plausibility theory of Complaint drafting requires the trial judge to decide whether the allegations in the lawsuit are, well, plausible. This standard requires the court to draw upon its experience in deciding whether the allegations are enough to initiate the discovery process, including depositions, document review, et al. Here, the question was an easy one, which is why the Court of Appeals issued this case as a summary order, not a published opinion. Retaliation against public employees for associating with political candidates happens all the time. Ain't nothing implausible about retaliation in this context.