Apples and oranges do not make a Title VII claim

Employment discrimination cases are harder to win the plaintiff has done something wrong. The plaintiff can say that she was singled out and that management looked the other way when male workers screwed up, but these disparate treatment cases face a high hurdle, and the Second Circuit is not too fond of them.

The case is Desir v. City of New York, a summary order decided on November 2. Desir was a probationary teacher who got unsatisfactory ratings for the 2004-05 school year and was relieved of his duties. The Second Circuit (Livingston, Walker and Straub) summarizes Desir's case: "Desir principally relies on the fact that he was both the only African-American teacher of the five who received unsatisfactory ratings for the 2004-2005 school year and the only one of those five who was fired." Now, if you are not that familiar with Title VII law, this might seems a good case. Desir was singled out, right? What about the teachers who got unsatisfactory ratings who weren't fired?

The problem with Desir's case is that the white teachers were not similarly-situated to Desir. They are not comparable because these other teachers were all tenured. Desir was a probationary teacher. He therefore was not subject to the same performance standards as the other teachers. In order to win a disparate-treatment case like this, you have to be "subject to the same performance evaluation and discipline standards and engaged in comparable conduct." Since Desir was a newer teacher still on probation, he is held to different standards to the tenured teachers who got unsatisfactory ratings. As far as the Court of Appeals is concerned, this is apples and oranges.

Desir also sued under the First Amendment. He cannot do so because the speech he claims prompted his retaliatory termination was not on a matter of public concern. It was a personal matter. "Although Desir argues he addressed organizational problems with the home instruction program and not just personal matters, his speech fundamentally concerned his own entitlement to privileges as a home instructor and therefore cannot be considered to have encompassed matters of public concern."

$1 million punitives award in discrimination case cut down to $50,000

A federal judge has reduced a $1 million punitive damages award to $50,000 following a jury trial in which a black former employee of Memorial Sloan-Kettering Hospital proved that management retaliated against him for complaining about racial discrimination in the workplace.

The case is Chisholm v. Memorial Sloan Kettering Cancer Center, 2011 U.S. Dist. LEXIS 130089 (S.D.N.Y. Nov. 3, 2011). Chisholm convinced the jury that a supervisor, Adamec, punished him for speaking out about workplace discrimination. This led to Chisholm's termination. The jury awarded Chisholm more than $230,000 in back pay and authorized the judge to award him front pay, or future lost income. The jury also awarded plaintiff a million dollars in punitives under the New York City Human Rights Law. That million dollar award has been remitted to $50,000.

First, Judge Marrero awarded $102,000 in front pay, through 2014. Chisholm wanted front pay through 2020, when he turns 65. But the court said that awarding front pay for the next nine years would be speculative and that Chisholm probably would have been fired long before then because of performance deficiencies. Judge Marrero says:

While the Court does not contest the jury's finding that the April 2007 log-sheet incident was not the true reason for Chisholm's termination, Chisholm's behavior in connection with that incident is nonetheless relevant evidence of Chisholm's inappropriate workplace demeanor. That Chisholm had retained transportation department documents in his locked desk drawer and indicative Defendants could troubling justifiably regard as of behavior increasingly erratic. Under these circumstances, the Court concludes that it is unlikely that Chisholm would have remained employed by Sloan-Kettering through 2020.

So, while the jury said the log-sheet incident was not the real reason for plaintiff's termination (and that the real reason was retaliation), the court uses that incident as a means to limit Chisholm's front-pay award.

On punitive damages, the jury awarded them because of Adamec's reprehensible behavior. But the jury was also told that the hospital would pay out the award under the New York City Human Rights Law. The court says the award shocks the judicial conscience. Even though the hospital pays the award, the court cites cases holding that a punitive damages award cannot "be so high as to result in the financial ruin of the defendant." Of course, this award would not ruin the hospital, but it would certainly ruin Adamic were he to pay the award. He doesn't though. While Chisholm's lawyers argued that this large award would deter an institution such as Sloan-Kettering from doing this again, the district court rejects that argument as lacking any support in case law. The court concludes, "While Adamec's conduct was certainly reprehensible, as the jury found, it did not involve violence or the threat of violence. Nor did it involve racial slurs or other offensive language. Moreover, an award of $50,000 represents a significant financial hardship to an
individual defendant."

NYC wins Occupy Wall Street lawsuit. Protesters cannot re-enter Zuccotti Park with tents

A State Supreme Court Justice has ruled that the City of New York may prevent the Occupy Wall Street protesters from bringing tents and sleeping bags and other things into Zuccotti Park, where the OWS protests have taken place since September 17, 2011. The ruling denies the OWS request for a temporary restraining order.

The case is Waller v. City of New York, decided on the afternoon of November 15. As everyone knows, the OWS protesters have camped out at Zuccotti Park in lower Manhattan to protest the vast inequality of wealth in this country and other deficiencies of the capitalist system. For many protesters, the park was a home away from home. I visited the park in mid-October and found a lively scene with hundreds of people holding signs, reading books, playing guitar, pounding on drums and generally hanging around.  I don't know how these people planned on staying there through the winter, but it's been a mild Autumn and the place was wall-to-wall people with a lot of tourists peeking around as well.

After New York City kicked everyone out of the park in the early-morning hours of November 15, the protesters brought an Article 78 petition seeking to continue with the tents and other gear that made the park a permanent protest location. In rejecting the restraining order, Justice Stallman noted that the park is a privately-owned public access plaza that is open 24 hours a day, unlike other city parks, which close at 11:00 p.m. The Court also noted that the park remains open to the protesters so long as they don't bring in all their stuff. Summarizing the parties' positions, the Court said:

The owner of Zuccotti Park has represented that, after cleaning and restoration of Zuccotti Park, it will permit the Occupy Wall Street demonstrators to reenter the Park and to resume using it, in conformity with law and with the owner's rules. Petitioners contend that, under the First Amendment, Brookfield's rules are not valid. Petitioners assert that, given the enactment of the rules after the demonstrations began, the rules targeted Occupy Wall Street.

The Court adds that "the owner of Zuccotti Park had not previously published rules regulating its use by the public." This allows the plaintiffs to argue that the rules were made up on the fly to get rid of OWS in violation of the First Amendment. After assuming that the First Amendment applies to this park, the Court sides with the City of New York. Ultimately, this case turns on "time, place and manner," a branch of First Amendment case law that allows the government to regulate speech on public property so long as the rules are not intended to stifle the political message and the demonstrators have ample alternatives to promote that message.

Here, [plaintiffs] have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment. To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner's rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.

In short, "[t]he [plaintiffs] have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely."

This case does not go away, however. This ruling only addresses the temporary restraining order. The City has 30 days to further answer the petition so the Court may issue a final ruling on the merits. 

First Amendment does not protect employee speech to newspaper and public board

The Court of Appeals holds that a Vermont woman who suffered retaliation after speaking to the newspaper and testifying before a public board about job-related matters does not have a claim under the First Amendment because her speech was not protected under the Supreme Court's Garcetti decision, which holds that speech is unprotected if the plaintiff made it pursuant to her official job duties.

The case is Bearss v. Wilton, decided on November 3. This is a summary order, so the Court does not provide all the facts, but here is what happened: Debra Bearss made two statements: (1) she spoke to the newspaper "rebutting allegations that former city officials had deleted public documents in violation of state law," and (2) she gave testimony "at a Board of Civil Authority hearing regarding Bearss' job performance in which she rebutted allegations that employee benefits had been improperly made by the former city treasurer." Bearss was the City of Rutland's information technology coordinator.

As for the newspaper comment, the Second Circuit (Katzmann, Winter and Wesley) agrees with the district court that plaintiff's speech is not protected because she "was acting as an employee with first-hand knowledge of the City's computer use when she responded to the reporter's inquiries." It was her job to speak to the newspaper in that a city memo said that "any computer issues need to be addressed to Debra Bearss, IT Coordinator." This was comparable to an official communication and therefore not citizen speech.

As for the public hearing testimony, this issue is more complex. Bearss argues that her comments actually reflected her policy disagreements with the City regarding employee benefit decisions. She also says the speech addressed potential malfeasance by the former city treasurer and she therefore spoke as a private citizen. But the Second Circuit sees it differently: "the record supports the conclusion that Bearss' statements were motivated by personal interest in responding to criticism of her job performance and not motivated by a a desire to 'advance a public purpose.'" As there is no citizen analogue to Bearss' speech in that her statements "were made in a forum not available to citizens who are not employees of the City of Rutland," she did not engage in free speech, and the case is dismissed.

Sex-plus Fair Housing Act claim survives dismissal

Here's what happened to the plaintiff: he went to look for an apartment in Queens. Plaintiff is an unmarried male. The Complaint says the Co-op Board has a policy of refusing to sell to "men who are single." According to the lawsuit, "this discriminatory conduct was a result of a bad experience with a previous male tenant who threw loud parties and smoked marijuana." Does this guy have a case under the Fair Housing Act?

The case is Lax v. 29 Woodmere Boulevard Owners, __ F. Supp. 2d ___, 2011 U.S. Dist. LEXIS 107546 (EDNY Sept 23, 2011). The Fair Housing Act prohibits discrimination on the basis of sex, among other things. This is a "sex-plus" claim, meaning the plaintiff seeks relief because the discrimination was based on his gender plus another characteristic, i.e., he is a single male. This seems to be a case of first impression. The district court says that Lax can bring the lawsuit. But it does so after reviewing Title VII cases involving "sex-plus" discrimination in employment. If Title VII recognizes sex-plus cases, why not the Fair Housing Act? Judge Bianco of the Eastern District of New York makes two observations:

First, "'sex-plus' discrimination claims are not solely limited to women and have been brought by men." Second, "gender plus marital status, the very sub-class alleged by Lax, has been recognized as a protected category in numerous discrimination cases. Although none of these cases were in the context of the Fair Housing Act, the Court finds that the Supreme Court and Second Circuit jurisprudence on 'sex-plus' claims under other discrimination statutes applies with equal force to the language of the FHA." One of the leading cases in this area is Back v. Hastings on Hudson School District, 365 F.3d 107 (2d Cir. 2004).

After Judge Bianco finds that the FHA recognizes this claim, he then holds that the Complaint states enough facts to survive a motion to dismiss. Lax did everything he was supposed to in trying to buy the apartment. It was then placed back on the market when the Co-op Board killed the deal. And, of course, someone on the board said that there was "discriminatory conduct again men who were single ... which was commonly known among building residents." Since the law does not require that Lax prove that the board denied any sale to comparable female applicants, the lawsuit may proceed.

Bergstein & Ullrich settle First Amendment public assembly case

City of Kingston agrees to pay $25,000 to aggrieved activists

Kingston Times
October 20, 2011
By Jesse Smith

The City of Kingston will pay a locally based pro-Palestinian activist group $25,000 to settle a lawsuit alleging that police violated their First Amendment rights when they were turned away from a 2008 celebration of the founding of Israel in a public park.

According to Stephen Bergstein, attorney for the group Middle East Crisis Response, the agreement was worked out on October 11 just as jury selection was getting underway in U.S. District Court in Albany before Judge Mae D'Agostino. In addition to the $25,000 settlement, the terms of the deal call for a meeting between representatives from the group and incoming Kingston Police Chief Egidio Tinti to discuss how the department will handle similar issues going forward.

"It's one thing to give the plaintiffs some money," said Bergstein. "It's another to have the chief entertain feedback from the plaintiff to prevent this from happening again."

The lawsuit stems from a May 2008 incident at a rally organized by the Ulster County Jewish Federation to celebrate the 60th anniversary of the founding of the Jewish state. About a dozen members of MECR showed up at Gallo Park in downtown Kingston to stage a counter-demonstration. When a shouting match erupted between the two sides, Bergstein said, Kingston cops resolved the situation by removing the MECR contingent from the park and moving them to a spot between Mariner's Harbor restaurant -- out of sight of the pro-Israel faction. When a few of the counter-demonstrators tried to return to Gallo Park individually to pass out leaflets, they were escorted out by police. Bergstein added that the MECR supporters were misled by police to believe that the park was not open to the public for the duration of the rally.

Bergstein said that police overreacted to the heated verbal exchange between the factions and in so doing violated the activists' rights to make their views known.

"I really feel like the police jumped the gun," said Bergstein, who noted that most of the MECR contingent was over age 60. "There was no threat to physical safety."

WDNY gives green light to fees-only lawsuit under Title VI

This case will be of interest mainly to employment lawyers. A federal judge in the Western District of New York finds that a plaintiff who won her State law discrimination claim in the State Division of Human Rights may bring a lawsuit in federal court in order to recover her attorneys' fees under Title VII. The attorneys' fees-only lawsuit is permissible.

The case is Ballard v. HSBC Bank, ___ F. Supp. 2d ___, 2011 U.S. Dist. LEXIS 123661 (WDNY Oct. 26, 2011). Title VII says that Federal courts have jurisdiction over any actions "brought under this subchapter." The court frames the issue as follows: "whether Ballard's claims solely for attorney's fees and costs are 'actions brought under this subchapter,' or, posed differently, whether Ballard can recover costs arising out of administrative and state proceedings." The answer is yes. Judge Skretny agrees with the Seventh, Eighth, Ninth and Tenth Circuits, which have already addressed this issue. (The Fourth Circuit went the other way on this issue). As the Second Circuit has not yet addressed this issue, this is an important case.

Cases brought solely for attorneys' fees are in fact actions brought under Title VII. Ballard could not seek attorneys' fees in the State Division of Human Rights, which ruled in her favor on the racial discrimination claim, awarding her $35,000 for pain and suffering. So there is no res judicata problem.

What makes this case unique is that Ballard prevailed in the State Division only on her New York State Human Rights Law claim, which does not provide for attorneys' fees. The State Division did not make reference to her Title VII claim, even though she did dual-file her discrimination charge with the State Division and the EEOC. Title VII, of course, does provide for attorneys' fees. The Western District of New York says that Ballard did what she was supposed to in filing in the State Division, and State and Federal discrimination claims are essentially the same animal. The Court concludes that "if a party is successful in the very action that Title VII referred her to and required her to invoke (i.e. the Division proceedings), she will accordingly be deemed a 'prevailing party' under that statute. This is true, in part, because the elements proving a discrimination claim are virtually identical under federal and state anti-discrimination law."