ADEA retaliation case will go to trial after all

Right now, eight hard-working Americans are sitting around watching television, reading the paper, looking at Facebook or playing with the family dog. They do not know each other, and none have any experience with the American legal system. They do know it yet, but some day, perhaps later this year, they will all convene at the United States Courthouse in lower Manhattan go decide whether Blair Davis-Garett was retaliated against by Urban Outfitters for complaining about age discrimination.

The case is Davis-Garret v. Urban Outfitters, issued on April 8. Plaintiff was an older employee who suffered age-related harassment in defendant's retail stores in White Plains and Long Island. She also worked at the Greenwich store, where she was given lousy job assignments and denied training. The Greenwich maltreatment happened shortly after plaintiff called the company hotline to complain about the age-harassment, which took the form of insulting ageist comments from supervisors.

The trial court dismissed the retaliation claim on summary judgment, ruling that plaintiff could not show her bad treatment at the Greenwich store was a material alteration in the terms and conditions of her job duties. The Second Circuit says this ruling might have made sense in 2005, but not anytime since, because in 2006 the Supreme Court said in the Burlington Northern case (one of the last remaining pro-plaintiff employment discrimination cases from that Court) that retaliation cases involve a different definition of "adverse action," which in this context means any management response to the discrimination complaint that might dissuade a reasonable employee from again speaking out against discrimination. The idea is that if management responds to discrimination complaints in a hostile way that does not amount to demotion, termination, etc., that response might still deter people from complaining, and the discrimination laws will then be violated without any consequence.

The Second Circuit in this case takes the time to remind us of the basic rules governing summary judgment, including the rule that all reasonable inferences must be drawn in the plaintiff's favor in determining if the plaintiff can win at trial. The trial court in this case did not do that, for the following reasons. First, while plaintiff was in fact promoted to the position that she wanted, as the Second Circuit (Katzmann, Chin and Kearse) notes, that only happened after she complained about discrimination, and when she got the promotion, no one trained her, she was unfairly criticized for deficient performance, she was scheduled to perform unsavory job assignments and management made ageist comments toward her. While the district court said a mere job transfer is not enough for a retaliation claim, it overlooked how that job offer was countermanded after the decisionmaker learned about the discrimination complaint, and she was sent to a location where that position was already filled and she was then denied training and given undesirable assignments. As this treatment would prevent a reasonable employee from speaking out against discrimination, plaintiff has a retaliation case. The Second Circuit notes that management can still win this case, and the all the Court is doing is finding that plaintiff may prevail at trial. The final decision on this case will be made by those jurors who are now sitting at home watching television, reading scholarly journals or staring into the night sky. Unless the case settles.

Choosing between reporting discrimination and protecting your health may give rise to retaliation claim

This retaliation case alleges that New York City supervisors punished the plaintiff for speaking out against sexual harassment and racial discrimination. The Court says the plaintiff plausibly alleges that supervisors retaliated against her in part by denying her the proper lunch hour to prevent migraine headaches.

The case is Collymore v. City of New York, a summary order issued on April 11. The Court of Appeals sure likes its summary orders, even when it reverses the grant of summary judgment. The Court probably does this because it does not see the case as precedent-setting, which means the district court blew it in dismissing the case. But this case stands for something interesting that deserves attention.

Using the latest case law in this area, the Second Circuit notes the standard governing retaliation claims under Title VII:

Collymore must plausibly allege (1) that she participated “in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action” was taken against her; and (4) there was “a causal connection between the protected activity and the adverse employment action.” Littlejohn v. City of New York, 795 F.3d at 315-16. [A]n adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d at 90. “[N]ormally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006). To satisfy the requirement of a causal connection, “the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action.” Vega, 801 F.3d at 90. At the pleadings stage, causation may be satisfied by allegations that “each of the adverse actions” defendants took “occurred against a backdrop of continuing antagonism and frustration of [the plaintiff’s] professional ambitions.” Duplan v. City of New York, 888 F.3d 612, 626 (2d Cir. 2018).

The Court (Pooler, Chin and Eaton [by designation]) says plaintiff's allegations that supervisors were harsh with her and yelled at her are nonactionable "petty slights, minor annoyances and simple lack of good manners" that cannot give rise to a lawsuit. Of course, this kind of office behavior is in the eye of the beholder. There is yelling and bad manners, and then there is yelling and bad manners. But that analysis stems from Supreme Court authority, and I don't think the Second Circuit wants to litigate your run-of-the-mill verbal abuse from supervisors who probably have personality disorders but who are not crossing the line into exceptionally abusive tantrums that might actually drive someone from the workplace.

But Collymore still has a retaliation case because she was forced to work through her lunch hour, causing her to suffer migraines on a regular basis. As the Second Circuit sees it, these supervisors "forced Collymore to choose between reporting discrimination and maintaining her health. It is therefore plausible that a reasonable worker in Collymore’s position would decline to report discrimination in order to conserve their health. Because Collymore has alleged facts indicating that Defendants-Appellees’ retaliation 'occurred against a backdrop of continuing antagonism and frustration of [her] professional ambitions,' Duplan, 888 F.3d at 626, Collymore has also sufficiently alleged a causal connection between her protected activity and the retaliatory acts."

Remember what I said about summary reversals? This case does not have the full precedential authority of a published opinion, but even summary orders can be cited in briefs. The Second Circuit from time to time cites its own summary orders to support its rulings. This case could have been precedential, as I have not seen a case that says forcing an employee to choose between reporting discrimination and protecting her health may give rise to a retaliation case under Title VII. So if you need a case that stands for that proposition, here it is.

Age-harassment case is headed for trial after 2d Circuit reinstates the claim

The Second Circuit only issues a handful of epic employment discrimination cases each year, using the occasion to survey the legal landscape before hammering a district judge who improperly granted management's motion for summary judgment. In this case, the Court of Appeals reinstates an age-harassment and retaliation case.

The case is Davis-Garett v. Urban Outfitters, Inc., issued on April 8. Plaintiff was in her 50's, working for a clothing retainer with younger coworkers and managers. She started working at the Roosevelt Field store before she was shipped to White Plains. She was then denied a transfer to the Edgewater, N.J. location. Plaintiff brings two claims: hostile work environment because of her age, and retaliation for complaining about the work environment. I'll start with the age-harassment and our next installment will cover the retaliation and the related summary judgment observations that the Second Circuit (Kearse, Katzmann and Chin) fleshed out in the ruling.

At the Roosevelt Field store, supervisors stuck plaintiff in the fitting room while the younger workers were trained to handle various other store-related tasks. When the Roosevelt Field store closed down and the employees were sent to work at other locations, plaintiff was sent to White Plains, more than 30 miles away. She was told she was sent to White Plains because of the "demographics" of that store, i.e., "that the people that shopped in the store were older and that I was old and that is why I was transferred there." In White Plains, plaintiff again found herself in the fitting room and received no training, yet she was often called upon to pick up "unsanitary trash or waste." She was also ostracized by younger workers, who repeatedly called plaintiff "mom" or "mommy" and "asked her to take care of their cuts, bruises and other ills" and they "consulted her about their personal problems." Even when plaintiff became a full-time customer associate in the White Plains store, she still worked the fitting room, and when she asked about a promotion to the apparel supervisor position, Store Manager Bentley told plaintiff that she "was too old for the job" and "you don't have the energy" and "the only reason you were sent here is because of the demographics here . . . the people that shop here are older and you're old" and "you would never be able to handle being a manager."

As it happens, in White Plains, plaintiff was ultimately promoted to Apparel Supervisor, Bentley was hostile towards her and lodged unfair criticisms and continued to assign her the fitting room. They also overworked plaintiff, having her work 10 consecutive days and closing the store 10 consecutive nights, an exhausting sequence. Another supervisor criticized plaintiff's "speed" and "pace" nearly every day. The Court concludes:


The district court rejected plaintiff's hostile work environment case on summary judgment. The Court of Appeals reinstates the claim after providing a good tutorial on hostile work environment law in the Second Circuit. Not only did the district court improperly ignore any hostile ageist acts that took place prior to the 300-day statute of limitations (the Supreme Court holds those otherwise time-barred acts are actionable if the hostile environment continued into the 300-day period), but the Circuit concludes that:

the entirety of Garett's ADEA claim that she was subjected to a hostile work environment—being, from the start of her employment at Anthropologie, denied the training given to younger sales associates and relegated to work almost exclusively in the fitting room, and later being assigned the most unpleasant and arduous duties and subjected to age-disparaging criticisms daily—was timely.

Very often, when you read these appellate rulings, you wonder how the case got dismissed on summary judgment. I cannot answer that question for you. The evidence seems clear, except that perhaps the district court judge forgot that prior age-related comments factor into the analysis; once that evidence enters the picture, the case looks very different. What wins the appeal for Garett is the volume of age-related comments combined with the age-neutral acts of hostility that, viewed in the context of the ageist slurs, may be presumed to be age-related as well. The point here is that we look at the totality of the evidence in determining whether someone has a hostile work environment case. 

Francis v. Kings Park Manor: Withdrawn!

A month ago I wrote about a case that expanded liability under the Fair Housing Act, which said landlords can be held liable for failing to deal with racist neighbors who create a racially hostile housing environment. That case is Francis v. Kings Park Manor, decided on March 4.

Today the Second Circuit issued a ruling that withdraws the Francis decision without comment. Why did this happen? Is the Second Circuit contemplating an en banc review? Was there something wrong with the decision? Who knows?

State Court strikes down emergency measles declaration

A State Supreme Court Justice has preliminary enjoined the County of Rockland from imposing an "Emergency Declaration" preventing any unvaccinated children under the age of 18 from entering any "place of public assembly," defined as any place where 10 or more people congregate, including schools.

The case is W.D. v. County of Rockland, issued on April 5. You've probably heard about the measles outbreak in Rockland County, where parents are not vaccinating their children for religious reasons. In late March 2019, the County Executive issued the ban pursuant to Executive Law section 24, which says the County Executive can issue a local state of emergency in the event of a "disaster," defined to include an epidemic. According to the court ruling, Rockland County has roughly 330,000 people. A total of 166 people in Rockland have the measles, or .05% of the population. Is this an epidemic under the law? Acting Supreme Court Justice Rolf M. Thorsen says it is not.

The Court notes that "an 'epidemic' is not defined within Executive Law section 24." So the Court looks to the "ordinary meaning" of the word. Under the dictionary definition, "an 'epidemic' is defined as an 'outbreak of disease that spreads quickly and affects many individuals at the same time." There is no "epidemic" in Rockland, the Court holds, because the .05% infection rate does not "rise to the level of an 'epidemic' as included in the definition of 'disaster' under Executive Law section 24." The proclamation is also enjoined because the County Executive imposed it for 30 days, and the law only allows him to do this for 5 days.

Under the rules governing Article 78 proceedings, the Executive's declaration is therefore "arbitrary and capricious" and struck down as a matter of law. This case is fascinating because few local judges will second-guess elected officials on emergency-related declarations. To give you a sense of how this case is being litigated, I give you the introduction to the County's memorandum of law in opposition to the injunction:

From October 2018 to date, Rockland County has seen 166 cases of measles during an outbreak, the magnitude of which has not been seen for decades. The County, and the United States in general are protected by what is known as ‘herd immunity’ as the result of the generally high rate of vaccinations for measles in the population. Essentially there are so few susceptible persons, that the disease is ‘starved’ of hosts and cannot spread. However, in Rockland County there are geographic areas where the vaccination rates are low, resulting in a lack of herd immunity, providing a rich ground for the disease to spread. The Plaintiffs’ schools are located in that geographic area.

As a result, upon the detection of the outbreak, the County Commissioner of Health, in consultation with the New York State Department of Health, determined to protect the public health by taking steps to prevent the spread of the measles. That course of action included, among other things, issuing an order excluding unvaccinated children from attending schools, where collections of unvaccinated children would provide a breeding ground for rapid spread of the disease.

This has been a stepped process. Initially, the order was applied only to schools where there were known exposures to the measles and vaccination rates were below 70% of the student body. Schools are the primary target of the restrictions because, in Rockland it is demonstrated that young people are the primary victims of the measles.

However, as cases continued to increase and the initial restriction was deemed to be
insufficient to stem the spread of the measles, it was observed that all of the cases were occurring in a limited geographical area within the County, which included the location
occupied by the Plaintiffs’ schools.

At that time, the order was extended to all schools in the geographic area, public and private, and presently affects approximately 60 schools. Due to the failure of less restrictive means to hold back further infections and spread of the measles, the Commissioners have become more restrictive. Presently, all schools in the subject
geographic area, with less than 95% vaccination rates are required to exclude all unvaccinated children until 21 days after the last known case. That time may be increased to 42 days based upon advice of the Center for Disease Control, but that ruling
by the Commissioner has not been made.

Following the Commissioner’s efforts, the number of cases in the County continued to increase. On February 22, 2019, the State declared the County to have an imminent threat to health. Through the middle of March 2019, the infections continued to increase.

On March 26, 2019, the County Executive determined to make further efforts to stem the tide if exposures to the disease and resulting infections. On that date, he declared the County to be in a State of Emergency, pursuant to his powers under Executive Law § 24. As a part of the declaration, he gave a directive that, generally speaking, required parents and guardians to keep all children and infants, unvaccinated for any but a medically determined reason, away from places of public assembly, including schools, houses of worship, shops, restaurants, etc. The Declaration will expire on April 25, 2019.

Now for the Plaintiffs' arguments, in part:

The irreparable harm. being caused by the orders and declaration challenged herein are incalculable. Hundreds of children are being excluded from school and public places. Their school districts are not providing tutoring. Children from Green Meadow and Peace though Play have missed nearly four months of schooling as a consequence of an exclusion order which exceeded the authority of the respondent county. Now, children from other schools and parts of the county, uncovered previously. are being caught in the same net. The annexed Affidavits provided by Green Meadow parents speak to the tremendous harn their-children have experienced and continue to experience.

Nearly six months after the first seven cases of measles were reported in his county and despite the fact that his Com.missioner of Health has failed to quarantine those infected at any time during this period, the County Executive seeks to bully the parents of unvaccinated children and to grandstand against religious exemptions. But, he cannot point to a single case of measles which was contracted by contact with any of these unvaccinated children. Nor have any of these unvaccinated children contracted the disease or have it. Instead, those suffering from measles resides in self-segregated communities and the disease has been so isolated.

The equities here strongly favor striking the respondent's illegal and unprecedented local emergency order. That order punishes unvaccinated children and their families because of an entirely legal status, one recognized by our state. Rather than timely quarantining those who had or have measles, the county has allowed them full mobility. It now seeks to pressure families who have religious exemptions to choose between isolating their healthy children or breaking their religious beliefs. The County Executive has scared the public by claiming that there are 157 cases of measles without advising the public that there are at most four active cases and these are, as prior cases have been, isolated to the religious community. The unprecedented local emergency order violates Executive Law 24 on its face, purporting to extend for a thirty day period which the law itself limits such orders to five days. Moreover, the respondent has misused this law intended for other purposes while not using the authority provided through the state's public health laws to meet the public need.

Supreme Court rejects anti-death penalty appeal

The Supreme Court has ruled in a 5-4 decision that a death-row inmate cannot challenge an execution method that he says will cause him excrutiating pain.

The case is Bucklew v. Precythe, decided on April 1. The Eighth Amendment prohibits executions if they cause unnecessarily cruel pain, but the inmate can only win the case if he can show the state is not using more humane ways of killing him, and that the state is refusing that alternative method without a legitimate reason. In this case, Bucklew has a rare disorder that will cause his blood pressure to spike once the state injects him with the death serum, causing his tumors to rupture and result in serious pain. The dissenting opinion describes the day-to-day reality of Bucklew's physical condition, and it is nothing you want to read over breakfast. (Bucklew leaks blood onto his face and has to wipe his face clean every morning).

Years ago, when I was reading about the late Chief Justice Rehnquist, someone noted that when he took on criminal procedure cases, Rehnquist did not hesitate to describe the inmate's crime in detail. Such a discussion was not really necessary, because criminal procedure does not usually turn on the horrendous crimes these people have committed, but, as someone said in describing Rehnquist's writing style, someone has to pay for this crime. I am reminded of this as I read the Bucklew decision; Justice Gorsuch lays out Bucklew's crimes, and it's positively awful, something out of a b-grade horror movie. This is the kind of case that even death penalty advocates sometimes point to in claiming the death penalty is appropriate in rare circumstances. Gorsuch knows that Bucklew's victims suffered horrible deaths, and that actually factors into the analysis.

And speaking of the anti-death penalty advocates, Gorsuch addresses them in this ruling, noting the many times Bucklew tried to stave off execution with new arguments that extended the case over the course of many years. Bucklew's crime spree -- at least for purposes of this case -- began in 1996, more than 20 years ago. Gorsuch repeatedly notes how the case dragged along with new arguments and legal theories. But that legal strategy is now over. Bucklew will die for his crimes.

Since this is a 5-4 ruling, you can't help but wonder how this case would have turned out had the time-space continuum taken a few detours. What if Mitch McConnell gave Obama's Supreme Court choice, Merrick Garland, an up-and-down vote? (Gorsuch was the beneficiary of that maneuver). What if the Democrats won a few extra Senate seats and rejected Brett Kavanaugh for the Court? What if Hillary Clinton campaigned in Wisconsin? But the horse is out of the barn. We have a rock-solid 5-4 conservative majority on most legal issues for the first time since the New Deal. We will be seeing more decisions like this.

Gorsuch summarizes the history of the death penalty in the U.S. and the Eighth Amendment jurisprudence that the Supreme Court has crafted over the years to ensure that people do not suffer cruel and unusual punishment. What the majority says in this case is that "the Eighth Amendment does not guarantee a prisoner a painless death -- something that, of course, isn't guaranteed to many people, including most victims of capital crimes." In the end, the Eighth Amendment "does not demand the avoidance of all risk of pain in carrying out executions," and the Constitution offers the states some deference in their choice of execution procedures. While Bucklew says the death injection will cause unspeakable pain, the Court concludes, he has not identified any alternative method of execution, and even if he did, he would have to show that any alternative method "would significantly reduce a substantial risk of severe pain."

Pro se Vermont plaintiff wins Fourth Amendment appeal

This pro se plaintiff took on the federal government in the Court of Appeals and won. The Second Circuit finds the plaintiff sufficiently alleged the police violated his rights under the Fourth Amendment when they unnecessarily prolonged a traffic stop to look for drugs and search his vehicle.

The case is McLeod v. Mickle, a summary order issued on March 27. Mickle is a special agent for the United States Forest Service. McLeod was pulled over on a traffic stop because of an expired inspection sticker. But then the police kept plaintiff there and began asking about illegal drugs. They called the K-9 unit and performed a "dog sniff" on the car. Plaintiff was not permitted to leave the scene until after the police dog sniffed out the car. This prolonged the stop by 35 to 40 minutes.

The law in this area was clarified a few years ago, when the Supreme Court said in Rodriguez v. United States, 135 S. Ct. 1609 (2015). "Even when a stop is reasonable at its inception, it can violate the Fourth Amendment if it is 'prolonged beyond the time reasonably required to complete that mission.'" While the district court in dismissing the case said plaintiff did not allege the police were not dilatory in issuing the citation, that is not the right focus, the Second Circuit (Sack, Raggi and Carney) says. The right focus is "whether [the officer's] pursuit of an unrelated investigation 'prolonged' McLeod's roadside detention." Here is the reasoning:

Here, McLeod alleges that, shortly after he was stopped and as soon as he conceded that his state inspection sticker was expired, Stokes repeatedly asked McLeod whether his car contained illegal drugs and requested permission to search McLeod’s vehicle. McLeod further alleges that Stokes told him that, if McLeod refused to consent to a search, Stokes would call a K9 unit. When later during the stop McLeod asked two other officers at the scene whether he could leave, they replied (McLeod avers) that they were “waiting for the K9 unit.” Finally, McLeod asserts that he was not permitted to leave until after the K9 unit arrived on scene and the dog sniffed his vehicle approximately 35 to 40 minutes after he was first stopped. These allegations support a reasonable inference that Stokes prolonged the traffic stop beyond the time needed to issue a citation for McLeod’s expired state inspection sticker and that he did so to pursue an unrelated investigation into whether McLeod was carrying illegal drugs in his vehicle. This inference supports McLeod’s Fourth Amendment claim and defeats Stokes’s motion to dismiss.