Wrongful death case will go the jury

There's a reason why the Appellate Divisions in Brooklyn and Manhattan have 20 cases on the calendar each day and the U.S. Court of Appeals has a fraction of that: in state court, you can appeal anything at any time, but in federal court, any court rulings cannot be appealed until the court enters a final judgment, years after the case was originally filed. There is an exception to that rule in federal court, as shown in this wrongful death case.

The case is Scism v. Ferris, a summary order issued on February 1. Ferris is a detective for the City of Schenectady. He and a partner, Kent, were sitting in an unmarked van by plaintiff's residence, preparing for an undercover drug buy. Believing they were up to no good, plaintiff told the guys in the van he did not want anyone selling drugs in his neighborhood. When plaintiff walked away, the van guys saw that plaintiff had a gun. Moments later, defendant fired his gun at plaintiff. This is where they factual disputes come in, which is why the trial court denied defendant's motion for summary judgment. The trial court wrote:

there is contradictory evidence regarding Scism's final acts. To that end, Kent testified that he saw Scism start to make a move towards Ferris with his gun in his hand. (Dkt. No. 95-32 at ¶ 25.) Ferris, likewise, testified that he saw Scism stop running, grab his handgun with his right hand, pull it out of his waistband, and begin to turn towards him. (Dkt. No. 95-27 at ¶ 27.)³ The CI, on the other hand, testified that he did not see Scism turn or make any movement towards Ferris or Kent before he was shot. (Dkt. No. 102-7 at 11-14, 47, (the CI Deposition transcript, currently filed under seal).) Furthermore, the medical evidence demonstrates Scism was struck in the back of his head and the medical examiner testified that it would be “extremely unlikely” that it would have hit the back of his head if he had been facing Ferris shortly before he was shot.

Scism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *2 (N.D.N.Y. Sept. 29, 2021)

there is contradictory evidence regarding Scism's final acts. To that end, Kent testified that he saw Scism start to make a move towards Ferris with his gun in his hand. (Dkt. No. 95-32 at ¶ 25.) Ferris, likewise, testified that he saw Scism stop running, grab his handgun with his right hand, pull it out of his waistband, and begin to turn towards him. (Dkt. No. 95-27 at ¶ 27.)³ The CI, on the other hand, testified that he did not see Scism turn or make any movement towards Ferris or Kent before he was shot. (Dkt. No. 102-7 at 11-14, 47, (the CI Deposition transcript, currently filed under seal).) Furthermore, the medical evidence demonstrates Scism was struck in the back of his head and the medical examiner testified that it would be “extremely unlikely” that it would have hit the back of his head if he had been facing Ferris shortly before he was shot.

Scism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *2 (N.D.N.Y. Sept. 29, 2021)

there is contradictory evidence regarding Scism's final acts. To that end, Kent testified that he saw Scism start to make a move towards Ferris with his gun in his hand. (Dkt. No. 95-32 at ¶ 25.) Ferris, likewise, testified that he saw Scism stop running, grab his handgun with his right hand, pull it out of his waistband, and begin to turn towards him. (Dkt. No. 95-27 at ¶ 27.)³ The CI, on the other hand, testified that he did not see Scism turn or make any movement towards Ferris or Kent before he was shot. (Dkt. No. 102-7 at 11-14, 47, (the CI Deposition transcript, currently filed under seal).) Furthermore, the medical evidence demonstrates Scism was struck in the back of his head and the medical examiner testified that it would be “extremely unlikely” that it would have hit the back of his head if he had been facing Ferris shortly before he was shot.

Scism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *2 (N.D.N.Y. Sept. 29, 2021)

there is contradictory evidence regarding Scism's final acts. To that end, Kent testified that he saw Scism start to make a move towards Ferris with his gun in his hand. Ferris, likewise, testified that he saw Scism stop running, grab his handgun with his right hand, pull it out of his waistband, and begin to turn towards him. The [confidential informant] on the other hand, testified that he did not see Scism turn or make any movement towards Ferris or Kent before he was shot. Furthermore, the medical evidence demonstrates Scism was struck in the back of his head and the medical examiner testified that it would be “extremely unlikely” that it would have hit the back of his head if he had been facing Ferris shortly before he was shot.

Ferris moved for summary judgment on qualified immunity grounds, claiming he acted reasonably in firing his gun, but that motion failed in the district court, which reasoned that "there are genuine issues of material fact regarding the reasonableness of Ferris's use of force."

Ferris appeals, but the Court of Appeals agrees he cannot win qualified immunity at the moment. There was no final judgment, but an immunity appeal can be taken before the case ends, on the theory that if you really are immune from suit, then making the officer go to trial is a waste of time. Problem is that you don't get qualified immunity if the jury resolves the evidence in a way that shows the officer did not act reasonably. That's the case here. 

The Second Circuit (Lohier, Leval and Perez) says it has jurisdiction over the appeal if the court bases its analysis "on an independent review of the record, including the district court's explanation of facts in dispute." But that review shows there really are disputed issues of fact that cannot be resolved on the papers. Since plaintiff's estate can win the case at trial, the appeal is rejected.

For you Section 1983 junkies, it does not look to me that the law is clear about when you can appeal from the denial of qualified immunity when the trial court says there are disputed issues of fact as to whether the defendant violated the law. In Lennox v. Miller, 968 F.3d 150 (2d Cir. 2020), which the Circuit cites in this case in holding that it did have jurisdiction over the appeal, the Court of Appeals said "We ordinarily do not have jurisdiction to hear an appeal of a denial of summary judgment. Nonetheless, we have appellate jurisdiction to hear an interlocutory appeal from a district court's denial of qualified immunity “to the extent it can be resolved on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.” 

But in Franco v. Gunsalus, 972 F.3d 170 (2d Cir. 2020), the Court said "Our court . . . has sobserved, “[t]he Supreme Court has made it clear that we lack appellate jurisdiction to decide an interlocutory appeal from a district court's denial of a claim of qualified immunity to the extent that the denial involves only a question of evidence sufficiency.” For that proposition, Franco cites Swain v. Town of Wappinger, 805 Fed. Appx. 61 (2d Cir, 2020), which said, “If the District Court says the evidence was sufficient to create a jury issue, then that is the end of our review.” If you have read this far and are looking at the language in Miller and Franco closely, it may look like a divergence in qualified immunity/interlocutory appeal doctrine.

cism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *2 (N.D.N.Y. Sept. 29, 2021)

Cheeks review under FLSA is required for unilateral dismissals

In 2015, the Second Circuit held for the first time that federal judges must approve the settlements of any claims brought under the Fair Labor Standards Act (FLSA). That was the Cheeks decision. Since then, we've seen a few cases that explore the boundaries of Cheeks, such as whether Rule 68 Offers of Settlement are subject to Cheeks review. (They are not). In this case, the Court considers whether the district judge must retain jurisdiction over a case when the plaintiff files a notice of voluntary dismissal of the FLSA claim. 

The case is Samake v. Thunder Lube, Inc., issued on January 27. The procedural history is complex. After plaintiff filed his FLSA claim, the employer moved to compel arbitration, no doubt triggered by plaintiff's having signed an arbitration agreement on the first day of employment without realizing he was signing his rights away but that's what you do when you start a new job and you have no bargaining power anyway and will sign whatever they put in front of you so you can get to work and start paying your bills. Anyway, the plaintiff next filed a notice of voluntary dismissal without prejudice under Rule 41. Normally, the district court signs off on such a notice without asking any questions. Not this case; the trial court held onto the case to determine that the parties had not reached any settlement that would necessitate judicial review under Cheeks.

Can the trial court do this? Yes, says the Court of Appeals (Jacobs and Liman [D.J.], with Menashi concurring). A couple of district court cases say the trial court should do this under Cheeks, but there was no binding authority on this issue, until now. The concern is the parties will try to avoid the (sometimes intrusive and time-consuming) Cheeks oversight by filing a stipulation of voluntary discontinuance and settling the case on their own. In this case, it looks like there was no FLSA settlement, and since the trial court granted the motion to compel arbitration, off to JAMS (or AAA) the case went.

The Second Circuit holds the trial court had authority to retain limited jurisdiction over the case to conduct a Cheeks review. The policies behind reviewing the settlement under Cheeks (that case  involved a joint dismissal by the parties) equally apply when we've got a unilateral dismissal under Rule 41: we have to make sure the plaintiff is getting a fair shake under the settlement. Also, the Court is worried that a contrary ruling will try to evade Cheeks review "simply by negotiating a settlement and release, then filing a unilateral dismissal without prejudice rather than a stipulated dismissal." This is not a theoretical concern, the Court notes. "History demonstrates that such concerns beset FLSA settlements arrived at by voluntary dismissal just as they do dismissals that are stipulated." A footnote to this statement cites four cases where this has happened, further supporting the Second Circuit's intent to eliminate such gamesmanship. 

Some legal advice from the Court of Appeals on false arrest claims

The plaintiff went to trial on his federal and state false arrest claims. The jury ruled in his favor on both claims, awarding him $150,000 for pain and suffering and another $35,000 in punitive damages. After the trial court vacated both verdicts on qualified immunity grounds, reasoning that the officer had "arguable probable cause," the plaintiff appealed. As I wrote in this blog post, the Court of Appeals finds that while the officer did not have probable cause to arrest the plaintiff, the officer did in fact have arguable probable cause, so the federal claim is gone. It's a different story with the state false arrest claim.

The case is Triolo v. Lee, issued on January 21. The case arises from an ugly family dispute that resulted in altercations. The police arrested plaintiff for assault without fully investigating evidence that would have shown the plaintiff did not actually attack his family. On the federal claim, the Court of Appeals said the officer's willful failure to explore this evidence demonstrated a lack of probable cause. But the Court also said a reasonable officer, in light of the entire record, would have arrested plaintiff. That's the "arguable probable cause" that gets you qualified immunity.

What about the state false arrest claim? Until now, the law was not clear about state false arrest claims and qualified immunity. The question is whether the municipality can be held liable for false arrest even if the officer gets qualified immunity under state law. In this case, the Eastern District of New York said "the County was not liable because [Defendant] Lee was immune from liability and it was sued for Lee's conduct only under a theory of respondeat superior." 

Courts have long held that municipalities can be held liable on a respondeat superior theory if one of its officers makes a false arrest. In this case, the Second Circuit (Chin, Pooler and Lohier) says New York law does not "categorically bar a principal's vicarious liability when an agent is immune from liability." But the cases the Court cites for this point are not false arrest cases but traditional torts cases. However, the Court notes the Restatements provide similar guidance. Bottom line: even if the officer has qualified immunity (and he does in this case on the state law claim), the county (or the town, city, or whatever) can still be liable for false arrest on a respondeat superior theory. There was some language in Kass v. City of New York, 864 F.3d 100 (2d Cir. 2017), that suggested otherwise, but the Court in Triolo clears this up, untangling a complex state law issue without sending it to the New York Court of Appeals, which it often does for unsettled areas of state law (Judge Lohier would send it to the New York Court of Appeals, but the majority in Triolo says in a footnote that the issue is not that complex and the case is almost six years old and we have to finish off this case once and for all). Since municipalities cannot enjoy qualified immunity, the county is on the hook for Lee's false arrest, even if Lee is immune from suit.

The Court will never give legal advice, but the advice here for false arrest lawyers is you ought to file those notices of claim for state law false arrest claims, and not just rely on Section 1983 for the federal claims, which often are dismissed on qualified immunity grounds. With short deadlines, notices of claim have to be filed quickly, and some municipalities actually have their own notice of claim rules and procedures that no one knows about that serve as trap doors even for experienced counsel. I learned that the hard way last year, but some brilliant lawyering on my part got around it. Bringing a notice of claim also entitles the municipality to a quick Rule 50-h hearing that allows its lawyers to ask your client questions prior to any lawsuit. That can be a hassle, but in this case it paid off. Triolo's jury verdict is restored.

Federal false arrest verdict from family dispute is thrown out on appeal, but state claim is reinstated

This false arrest case went to trial and plaintiff on his federal and state law claims. Yay! But a funny thing happened on the way to the judgment. The trial court threw out the verdict on defendant's post-trial motion, holding the police officer was entitled to qualified immunity. Plaintiff takes up an appeal. He gets the state verdict back, but the federal claim is gone.

The case is Triolo v. Lee, issued on January 21. This case began with a horrible family argument that included violence, vulgarities, and an altercation at the father's wake. The dispute had plaintiff on one side, and his brother and mother on the other side. The police report said plaintiff punched, strangled and choked his brother, but for some reason the report also said that "no offense was committed." Plaintiff got arrested criminal obstruction of breathing or blood circulation (for choking his brother) and assault (for grabbing his mother). At trial, the jury found there was no probable cause to arrest plaintiff, who was awarded $150,000 for pain and suffering and $35,000 in punitive damages. The trial court knocked out the verdict, holding the officer had qualified immunity, which lets police officers off the hook if they have arguable probable cause.

The Court of Appeals threads the needle on the federal claim, finding the jury did in fact have a basis to find the officer lacked probable cause to arrest plaintiff. The rationale is that the officer arrested plaintiff despite having access to information at the time that demonstrated plaintiff had not violated the law. While the brother and mother signed statements claiming plaintiff had assaulted them, "the jury disregarded evidence that undermined their veracity," as they had no visible injuries, the domestic incident report said "no offense was committed," and the officer showed no interest in evidence presented by plaintiff's wife that plaintiff was in fact the victim, not the aggressor. 

Courts usually find probable cause existed when the police rely on the victim's statement that someone did them wrong. Probable cause exists even if the victim was mistaken. The officer does not have to conduct a full-blown investigation into the charges against the criminal defendant before making an arrest. That's why so many false arrest claims are dismissed. But there is a narrow line of cases that say the officer cannot ignore evidence that would completely exonerate the criminal defendant. You don't see those cases too often. This is one of those cases. 

But to win the case, plaintiff still has to get around qualified immunity, a judge-made rule that says the officer cannot lose the case if he acted reasonably under the circumstances. That immunity applies here, the Court of Appeals (Lohier, Pooler and Chin) says, because he had "arguable probable cause" to make the arrest. As it is not clear that no reasonable officer could have concluded that probable cause existed, the officer gets qualified immunity, and the federal claim is gone. Here is the reasoning on this issue:

The alleged victims signed a domestic incident report, alleging that Triolo choked, punched, grabbed, and injured them.  Their accounts were consistent with each other's.  And even though the lack of visible injuries arguably undermined their veracity, it is nonetheless possible that no visible injuries resulted from the alleged assault.  Finally, although the report stated that no arrest was made on May 17, 2015, because "no offense [was] committed," a reasonable officer receiving this report could have concluded this was a mistake because the form also plainly indicated that Triolo had engaged in punching, pushing, strangulation, and choking.

The state law claim, however, is reinstated. But that's a blog post for another day.

State Court strikes down NY's mask mandate

A state judge in Nassau County has ruled that the Governor exceeded her authority in issuing a COVID-19 mask mandate in December 2021. This is the latest in a series of court rulings over the last few years in which courts around the country have applied traditional legal principles in examining governmental orders relating to the pandemic. 

The case is Demetriou v. New York State Department of Health, issued on January 24. The most recent high-profile COVID-19 ruling saw the Supreme Court strike down an order from the federal Occupational Safety and Health Administration (OSHA) mandating that large employers around the country follow a vaccination mandate. That ruling concerned the power of a federal agency and whether it comported with the federal statute that created the agency. The Nassau County ruling involves a similar legal principle: separation of powers. 

These cases have acquainted the public with otherwise obscure legal principles. They are obscure to the general public, but not to lawyers and judges, many of whom probably last focused on these principles in law school. But obscure legal principles have a funny way of becoming relevant when you last expect it. Two years ago, courts were not routinely considering whether the Executive Branch had authority to make certain decisions. Not so today.

The plaintiffs in this case sue on behalf of their children who have to wear masks in school. The Court notes that the Governor declared a disaster emergency on November 26 once the Omicron variant began spreading around the country. But the State admits in its Answer to the lawsuit that currently there is no state disaster emergency. The Executive Branch then promulgated the mask mandate regulation. Everyone over the age of two has to wear one. The problem, as the Court sees it, is that the regulation covers a subject matter that only the State Legislature can address, not the Governor's office. The Court cites a 1987 ruling from the State Court of Appeals stating that the legislative branch cannot cede its authority to an administrative agency, which is not part of the legislative branch but the executive branch, with the Governor at the helm of that branch.

Administrative agencies do have power to issue certain rules. But those rules must be authorized by statutes. The Court says that no law enacted by the State Legislature gave the Department of Health the authority to adopt the mask mandate. Nor may regulations issue without compliance with the Administrative Procedure Act, which articulates a process for new regulations. This is administrative law 101: all regulations must in some way be authorized by statute. Since administrative agencies are comprised of experts who can issue specific regulations that give life to a statute, courts will defer to that expertise. But that deference has its limits. By way of example, the judge writes, "This Court does not need to contort the bounds of reality to imagine chaos in this State wherein laws were rules made from Executive Branch appointees such as the Commissioner of the Department of Motor Vehicles issuing annually new and differing speed limits or other rules of the road."

While the judge is sympathetic to what the State is trying to do in enacting the mask mandate, it strikes down the mandate, concluding this is a matter for the Legislature, not the Governor. The implication is that if the Legislature enacts such a mandate, it would probably be legal. In the meantime, the State is appealing this ruling, and my guess is the Appellate Division will resolve this issue very quickly. In the meantime, since the State is taking up an appeal, the mandate is still enforced during the appellate process.

Challenge to IBM severance agreement fails

When these plaintiffs were laid off from IBM, they signed severance agreements in which they agreed not to join any class or collective actions against IBM. In exchange for signing the agreements, plaintiffs got lump-sum payments for lost salary as well as a year's worth of health and life insurance coverage. Plaintiffs then sued IBM, claiming the agreements were invalid because they did not include information set forth in the Older Workers Benefit Protection Act of 1990. The Court of Appeals rejects that arguments, and plaintiffs are prohibited from joining any class actions.

The case is Estle v. International Business Machines Corp., issued on January 20. Under the age discrimination law, any waiver of your rights must be "knowing and voluntary." If the severance agreement leaves out pertinent information, then you did not knowingly waive your rights, correct? Maybe not. In this case, the severance agreements left out information relating to the job titles and ages of other employees who were not part of the layoff, what we call "comparator information." As the district court pointed out:

Between 2001 and 2013, IBM “conducted at least a dozen group layoffs,” using “a standard Separation Agreement, which required employees to sign a general waiver of employment-related rights and claims, including all rights and claims under the ADEA, in order to receive a severance payment and benefits. During that time, IBM consistently provided employees selected for layoff with the OWBPA comparator information.” (Id. ¶¶ 35-36)

In 2014 – pursuant to a “company-wide change” – IBM stopped providing this comparator information to those employees selected for layoff. Plaintiffs contend that the comparator information must be provided under the OWBPA in order for IBM to obtain a waiver of ADEA rights. (Id. ¶¶ 33, 36) According to Plaintiffs, however, they “received no information in writing regarding which ‘class, unit, or group’ their Resource Action would affect, ‘any eligibility factors’ for the Resource Action, ‘the job titles and ages of all individuals’ asked to sign the waiver, or ‘the ages of all individuals in the same job classification or organizational unit’ within the group who were spared.” (Id. ¶ 79)

Estle v. Int'l Bus. Machines Corp., No. 19 CIV. 2729 (PGG), 2020 WL 5633154, at *1 (S.D.N.Y. Sept. 21, 2020), aff'd, No. 20-3372, 2022 WL 175487 (2d Cir. Jan. 20, 2022)

Between 2001 and 2013, IBM “conducted at least a dozen group layoffs,” using “a standard Separation Agreement, which required employees to sign a general waiver of employment-related rights and claims, including all rights and claims under the ADEA, in order to receive a severance payment and benefits. During that time, IBM consistently provided employees selected for layoff with the OWBPA comparator information.” (Id. ¶¶ 35-36)

In 2014 – pursuant to a “company-wide change” – IBM stopped providing this comparator information to those employees selected for layoff. Plaintiffs contend that the comparator information must be provided under the OWBPA in order for IBM to obtain a waiver of ADEA rights. (Id. ¶¶ 33, 36) According to Plaintiffs, however, they “received no information in writing regarding which ‘class, unit, or group’ their Resource Action would affect, ‘any eligibility factors’ for the Resource Action, ‘the job titles and ages of all individuals’ asked to sign the waiver, or ‘the ages of all individuals in the same job classification or organizational unit’ within the group who were spared.” (Id. ¶ 79)

Estle v. Int'l Bus. Machines Corp., No. 19 CIV. 2729 (PGG), 2020 WL 5633154, at *1 (S.D.N.Y. Sept. 21, 2020), aff'd, No. 20-3372, 2022 WL 175487 (2d Cir. Jan. 20, 2022)

Between 2001 and 2013, IBM “conducted at least a dozen group layoffs,” using “a standard Separation Agreement, which required employees to sign a general waiver of employment-related rights and claims, including all rights and claims under the ADEA, in order to receive a severance payment and benefits. During that time, IBM consistently provided employees selected for layoff with the OWBPA comparator information.” (Id. ¶¶ 35-36)

In 2014 – pursuant to a “company-wide change” – IBM stopped providing this comparator information to those employees selected for layoff. Plaintiffs contend that the comparator information must be provided under the OWBPA in order for IBM to obtain a waiver of ADEA rights. (Id. ¶¶ 33, 36) According to Plaintiffs, however, they “received no information in writing regarding which ‘class, unit, or group’ their Resource Action would affect, ‘any eligibility factors’ for the Resource Action, ‘the job titles and ages of all individuals’ asked to sign the waiver, or ‘the ages of all individuals in the same job classification or organizational unit’ within the group who were spared.” (Id. ¶ 79)

Estle v. Int'l Bus. Machines Corp., No. 19 CIV. 2729 (PGG), 2020 WL 5633154, at *1 (S.D.N.Y. Sept. 21, 2020), aff'd, No. 20-3372, 2022 WL 175487 (2d Cir. Jan. 20, 2022)

Between 2001 and 2013, IBM “conducted at least a dozen group layoffs,” using “a standard Separation Agreement, which required employees to sign a general waiver of employment-related rights and claims, including all rights and claims under the ADEA, in order to receive a severance payment and benefits. During that time, IBM consistently provided employees selected for layoff with the OWBPA comparator information.”

In 2014 – pursuant to a “company-wide change” – IBM stopped providing this comparator information to those employees selected for layoff. Plaintiffs contend that the comparator information must be provided under the OWBPA in order for IBM to obtain a waiver of ADEA rights. 

 

According to Plaintiffs, however, they “received no information in writing regarding which ‘class, unit, or group’ their Resource Action would affect, ‘any eligibility factors’ for the Resource Action, ‘the job titles and ages of all individuals’ asked to sign the waiver, or ‘the ages of all individuals in the same job classification or organizational unit’ within the group who were spared.”

In signing the severance agreements, did plaintiffs waive any rights under the Older Workers Benefit Protection Act? No, says the Court of Appeals (Park, Leval and Sack). In 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), the Supreme Court said the "right or claim" under the age discrimination law that employees cannot knowingly waive "is limited to substantive rights and does not include procedural ones." Collective actions, like arbitration, are procedural issues, not substantive rights under 14 Penn Plaza. 

What it means for plaintiffs is they did not waive any substantive rights and "a collective-action waiver is thus not a waiver of any 'right or claim' under the ADEA that triggers the requirements" under the statute's knowing waiver provision. No class or collective action for plaintiffs, who can still bring individual ADEA claims. As the Circuit notes, this holding is consistent with those reached by five other Circuits since 1999.

Between 2001 and 2013, IBM “conducted at least a dozen group layoffs,” using “a standard Separation Agreement, which required employees to sign a general waiver of employment-related rights and claims, including all rights and claims under the ADEA, in order to receive a severance payment and benefits. During that time, IBM consistently provided employees selected for layoff with the OWBPA comparator information.” (Id. ¶¶ 35-36)

In 2014 – pursuant to a “company-wide change” – IBM stopped providing this comparator information to those employees selected for layoff. Plaintiffs contend that the comparator information must be provided under the OWBPA in order for IBM to obtain a waiver of ADEA rights. (Id. ¶¶ 33, 36) According to Plaintiffs, however, they “received no information in writing regarding which ‘class, unit, or group’ their Resource Action would affect, ‘any eligibility factors’ for the Resource Action, ‘the job titles and ages of all individuals’ asked to sign the waiver, or ‘the ages of all individuals in the same job classification or organizational unit’ within the group who were spared.” (Id. ¶ 79)

Estle v. Int'l Bus. Machines Corp., No. 19 CIV. 2729 (PGG), 2020 WL 5633154, at *1 (S.D.N.Y. Sept. 21, 2020), aff'd, No. 20-3372, 2022 WL 175487 (2d Cir. Jan. 20, 2022)

Sex discrimination verdict upheld in the Northern District of New York

This case went to trial in the Northern District of New York in 2021. The jury found an upstate school district discriminated against a principal because of her gender, awarding her more than $480,000 in damages. As always, the defendants post-trial asked the judge to throw out the verdict and/or reduce the damages award. The trial court rejects that effort, and the verdict stands.

The case is Krause v. Kelahan, 2022 WL 5876678 (N.D.N.Y. Dec. 13, 2021). The plaintiff put on evidence that the Schools Superintendent, Kelahan, said plaintiff's office was too feminine and that women in general are too emotional. He also questioned plaintiff's fitness as a mother in taking the job in the first place. Based on Kelahan's recommendation, plaintiff was fired as principal. While defendants put on evidence that plaintiff had job deficiencies, Judge Hurd recognizes that you need compelling evidence to overturn a verdict and the jury can believe whatever witnesses it wants in rendering a verdict. Kelahan argued that plaintiff had mishandled a Section 504 disability accommodation for a student, but the jury was able to reject that defense the student's family had no objections to the altered 504 plan, and that situation was unique, caused by the family's difficulties in obtaining a proper accommodation for their daughter. This kind of nuanced reasoning by the trial court demonstrates how difficult it is to overturn a jury verdict. There is always an argument that the plaintiff offered at trial that the jury could have accepted in ruling for the plaintiff.

Plaintiff also prevailed on her hostile work environment claim. The district court said this was a closer call than the termination claim, but since plaintiff testified that Kelahan made "repeated criticism[s] and cutting remarks . . . for the entire duration of her employment," comments that included the motherhood insult, that's enough for a gender harassment claim.

Defendants raise one argument that gives Judge Hurd serious pause: the cat's paw argument. Under the cat's paw, an employer can be liable for discrimination if the recommender was motivated by gender bias. There is no cat's paw if the final decisionmaker acted in good faith. The court gets around this complicated area of the law by finding that the school board had delegated the decision making authority to the superintendent. The law for that proposition is Vance v. Ball State Univ., 570 U.S. 421 (2013). Without this rule, Judge Hurd states, employers could delegate decision making to biased supervisors and then claim ignorance and avoid liability unless there were "obvious red flags to warrant closer scrutiny into a subordinate's recommendation. Through a simple act of corporate restructuring, anti-discrimination statutes would find themselves suddenly toothless."

What about damages? The jury awarded plaintiff $150,000 for pain and suffering (I assume the remaining damages covered lost wages). But that amount of money for 1.5 years of discrimination is within the reasonable range of damages awards. Besides, the court notes, defendants' post-trial brief did not cite any cases to support their argument that this amounted to too much money. The court writes that it will not do defendants' research for them.

A word or two about proper briefing. The judge starts out the opinion by noting that defendants' lawyer submitted an attorneys' affirmation rather than a brief. That violates the NDNY's rules, and probably those in other judicial districts. We want briefs, not attorney affirmations. Making matters worse, "apparently sensing the metaphorical ice cracking under their feet, defendants nevertheless tried to scamper these arguments back to more solid footing by resubmitting them verbatim in their reply brief." That tactic won't work, either. Also, defendants' post-trial submissions barely cited to any legal authority. Nor did they cite to the trial transcript to support their evidentiary arguments. Folks, if you want to win your motion, you'll have to do better than that.