Court of Appeals reinstates religious accommodation case under Title VII

The Court of Appeals holds that a female corrections officer who is also a practicing Muslim may sue the Department of Corrections after a male supervisor forced her to remove her hijab in his presence, contrary to her religious principles. The Court holds that, in requiring her to remove the hijab in the presence of a man outside of her family, DOCCS subjected her to an adverse action in violation of Title VII's prohibition against religious discrimination.

The case is Billings v. Murphy, a summary order issued on February 6. I briefed and argued the appeal. The case was brought by Frederick K. Brewington, Esq. 

The case began when plaintiff requested a religious accommodation that would allow her to wear a hijab at work. Since she worked in a state prison, the concern was that an inmate could grab the hijab and choke her, so DOCCS directed her to submit to a demonstration showing the hijab could be removed without causing her any harm. A male supervisor, Artuz, was assigned to perform the demonstration. Plaintiff objected to Artuz's role in the demonstration because that would mean she would have to remove the hijab in his presence. Artuz told her to comply with his demand anyway, and she did, suffering a panic attack moments later over the violation of her religious principles. Plaintiff's religious accommodation request sought to have a female officer conduct the demonstration with her. The argument is that having a man present during the demonstration violated her religious rights.

While the district court, in dismissing the case under Rule 12(b)(6), held that plaintiff did not suffer an adverse action, dooming her religious discrimination claim, the Court of Appeals reverses and says plaintiff makes out a prima facie case. Defendants acknowledged at oral argument that the denial of a reasonable religious accommodation absent a showing of undue hardship alters the "terms, conditions, or privileges of employment" under Title VII.

The Court of Appeals (Lohier, Nardini and Jacobs) thus holds, "We conclude that the refusal to accommodate Billings’s request to remove her hijab in front of a female supervisor constitutes an adverse employment action because it is a 'materially adverse change in the terms and conditions of employment' that is 'more disruptive than a mere inconvenience or an alteration of job responsibilities.' While the district court held that plaintiff was required to allege an additional adverse action beyond the denial of her request for a religious accommodation, that was incorrect, the Second Circuit holds. The reasonable accommodation denial is the adverse action. I do not believe the Court of Appeals has previously reached such a holding, which is why the Department of Justice submitted an amicus brief on this appeal and shared the oral argument with me.

Plaintiff also asserts an inference of discrimination, the Court of Appeals says, rejecting the district court's contrary conclusion. "Billings alleges that she began wearing her hijab on or around April 28, 2017, and that she was dismissed on May 2, 2017, removed from payroll on May 27, 2017, and unable to return to work from May to December 2017.  Given Billings’s 'minimal' burden at this stage, these allegations support a plausible inference of discrimination."

Yelling at police officer, "Turn your lights on, asshole," is protected under the First Amendment

This is a pure First Amendment case that does not involve classic protesting or political speech. Instead, it involves foul language directed toward a police officer. The Court of Appeals says the plaintiff has a case.

The case is Rupp v. City of Buffalo, issued on January 31. It all started when plaintiff and his wife saw someone driving their car at night without any headlights. The motorist almost hit two pedestrians. Plaintiff, who was also a pedestrian, shouted at the driver, "turn your lights on, asshole." The driver was not just any driver, however. After Rupp called the driver an asshole, he realized the driver was behind the wheel of a City of Buffalo police car. The driver was a police officer. He told Rupp he could be arrested for what he had just said. When Rupp reminded the officer that he cannot drive his car without the headlights activated and had almost caused a pedestrian accident, defendant exited the car and told Rupp he was detained. When other officers arrived, Rupp -- who is an attorney -- told them that police officers not exempt from the rule that cars must drive at night with their headlights on. Rupp was arrested for violating the City's noise ordinance. 

Plaintiff sued under the First Amendment. The district court noted that while cases hold that you can mouth off to the police under the First Amendment, those cases do not help Rupp because he did not know he was shouting at a police officer when he called him an asshole.

The Court of Appeals finds that the district court had resolved numerous disputed factual issues in granting summary judgment, essentially taking these disputes away from the jury. While the district court said that Rupp has no case because he was unaware he was addressing a police officer, "not knowing that the vehicle's driver was a police had no bearing on whether Rupp's shout was speech on a matter of public concern" and therefore protected under the First Amendment. "Rupp did not need to know who was driving in the dark without headlights in order to understand that such conduct was dangerous. And he had not shouted at the driver until he saw the vehicle nearly hit two pedestrians." And while the district court noted that plaintiff had used an expletive, that does not mean the police had a legitimate basis to arrest him. The Court of Appeals reasons:

a jury would be entitled to view a shout as unreasonable noise if all five words were "asshole" or other expletives; but in fact Rupp shouted "turn your lights on, asshole." We have no doubt that he was upset; but his shout was an exhortation that was forward-looking in the interest of public safety. A rational juror could easily view the shout as an attempt to avert a possible accident by (a) a vehicle without lights, (b) whose driver appeared not to know he was driving without lights, (c) who had just had to stop for two pedestrians in his path attempting to cross the street, and (d) who even after that abrupt stop, resumed driving without headlights--and thus could easily view the shout as eminently reasonable. 

As for the noise ordinance arrest, the Court of Appeals says the jury may find there was no probable cause for that because it may find that Rupp's shout was neither excessive nor unreasonable and that Rupp instead intended to protect public safety in telling the driver to turn on his lights. Again, the Court of Appeals:

Given that the intent of the Buffalo noise ordinance is in part to "promote health, safety and welfare" in the City, we see no valid basis for concluding that it was intended to criminalize a brief shout intended to urge a person driving in the dark without headlights--especially when his vehicle has just nearly hit two pedestrians--to turn on his lights. Although the court acknowledged at the start of its decision that    McAlister turned his lights back off after his encounter with the two pedestrians, it never mentioned that fact in its discussion of the circumstances surrounding Rupp's shout. Instead, it mentioned at least three times that Rupp's shout contained an "expletive," despite the fact that the   presence of an expletive did not eliminate or diminish the character of the shout as a warning.

Do not use artificial intelligence to write your legal briefs

The Court of Appeals has reprimanded a lawyer who filed an appellate brief that cites a case that does not exist. This is another example of a lawyer using artificial intelligence to write a brief without making sure that the cases cited by AI are real cases.

The case is Park v. Kim, issued on January 30. This case is actually a double-whammy. The case itself was dismissed because the plaintiff would not comply with discovery orders. The trial court kept giving plaintiff second chances on compliance but in the end the court threw out the case under Rules 37 and 41(b). Since trial judges have broad discretion to dismiss cases when the plaintiff repeatedly fails to comply with discovery orders, that ruling is affirmed by the Court of Appeals (Merriam, Parker and Nathan). 

But the larger story here is what happened to plaintiff's attorney. She used AI to help write the brief. Lawyers have done this before and gotten in trouble when they fail to ensure that the cases cited by AI were real cases. In this case, the attorney used ChatGPT for the reply brief, which cited only two cases. One of those cases was Matter of Bourguignon v. Coordinated Behaviorial Health Services, Inc., 114 A.D.3d 947 (3d Dept. 2014). The judges on the Court of Appeals could not find that case and asked counsel to provide them with a copy. Counsel responded that she was unable to do so and admitted that she had relied on AI to help write the brief. The actual case for this citation is Kay v. Desantis, 114 A.D.3d 947 (2d Dept. 2014), which deals with a child-support issue under the Family Court Act. Park's case involves a workplace injury.

Place

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

Place

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

Matter

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

Matter

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

Matter

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

I am sure the Court of Appeals was flabbergasted to learn that the reply brief cited a non-existent case. The Court writes, "Attorney Lee’s submission of a brief relying on non-existent authority reveals that she failed to determine that the argument she made was 'legally tenable.' The brief presents a false statement of law to this Court, and it appears that Attorney Lee made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented." The Court has referred counsel to the grievance committee for the federal courts, where some kind of sanction is probably in order.

Plaintiff loses scaffolding claim at trial

The New York State scaffolding law is well-known to developers. It imposes absolute liability on them if their employees suffer an injury from inadequate safety provisions which cause them to fall to the ground. These cases are usually filed in state court, but this one went to trial in federal court, and the plaintiff lost. The Court of Appeals (Parker, Lee and Merriam) upholds the verdict.

The case is Csikos v. 230 Park South Apartments, a summary order issued on January 25. Plaintiff says he fell from a A-frame ladder that was not safely secured, suffering injuries. He wanted summary judgment on this issue, but the district court held the jury could find the ladder was properly secured and that plaintiff's elevation from the floor was minimal and did not require fall protection. Note that many of these cases are decided in the plaintiff's favor on a summary judgment motion, as the record is often clear that there was something wrong with the safety provisions when the plaintiff had to take part in elevated work, either on a scaffold or a ladder. But these cases sometimes go to trial on this issue. Like this case.

One reason plaintiff was properly denied summary judgment was that a New York court held in a different case that “[a] fall from a ladder does not in and of itself establish that the ladder did not provide appropriate protection” and that “[d]efendants would not be subject to statutory liability if plaintiff simply lost his footing while climbing a properly secured, non-defective extension ladder that did not malfunction.” That ruling led to the trial, which plaintiff lost. 

As for plaintiff's claim that he deserved judgment as a matter of law at trial, and that the case should have been taken from the jury and decided by the judge in his favor after the evidence was submitted that argument fails also. Bear in mind that it is quite difficult to second-guess a jury's factual determinations at trial. We leave it to juries to decide what happened in the case, and if there is evidence on both sides, the jury's decision to credit one side over the other is almost never overturned on the basis that the losing side had better evidence than the winner.

In this case, 230 Park put on evidence "that the sequence of events leading to the fall did not occur in the way that Csikos recited—ultimately attempting to make its point that 230 Park (through the contractor it hired for the job) adequately equipped Csikos for the needs of the demolition project and did not breach its obligations under NYLL § 240(1)." Instead, while Csikos testified that "he was standing on the fourth step of the ladder when it 'moved,' causing him to lose his balance and fall," 230 Park presented evidence that Csikos told ambulance attendants that he fell after “he missed the bottom step of the ladder,” not that the ladder moved. The jury was allowed to believe 230 Park over plaintiff on this issue. In addition, 230 Park's resident manager of the building, who was present after the incident, testified that "the ladder was standing upright, as well as pictures that demonstrated the height and width of the hallway in which the demolition work occurred." The jury was permitted to believe that testimony.

Bridge toll penalty fees do not violate the Eighth Amendment

No one likes paying highway or bridge tolls but these fees are a fact of life so the government can maintain the roads and bridges. The plaintiffs in this case sued the Triborough Bridge and Tunnel Authority, claiming that its fines for unpaid tolls violate the Eighth Amendment's prohibition against excessive fines. The plaintiffs lose.

The case is Reese v. Triborough Bridge and Tunnel Authority, issued on January 26. The fines can be as high as $100 for each unpaid toll. One plaintiff had 41 toll violations and was hit with fines totaling $4,000 even though the underlying tolls amounted to only $381.50. Another plaintiff had $1,000 in fees for 10 toll violations, but the underlying tolls were for $85. A third plaintiff had 439 violations in more than two years and was fined $43,550 for $3,810 in unpaid tolls. You get the picture. They claim the fines are unconstitutionally excessive. The Court of Appeals (Lohier and Lynch) finds for the agency.

The Eighth Amendment is silent as to how courts should enforce it. The Supreme Court adopted a test in United States v. Bajakajian, 524 U.S. 321 (1988) that lays out four factors:

(1) the essence of the crime of the defendant and its relation to other criminal activity, (2) whether the defendant fits into the class of persons for whom the statute was principally designed, (3) the maximum sentence and fine that could have been imposed, and (4) the nature of the harm caused by the defendant's conduct.

Plaintiffs lose because (1) plaintiffs' violates stemmed from their failure to pay attention to the fine-payment process and fines are OK under the Eighth Amendment even for strict liability offenses, (2) plaintiffs' fines fell below the maximum amount that could have been assessed by the agency, and (3) the harm caused by plaintiffs' failure to pay the fines were not minimal to nonexistent, undercutting their argument that the fines were disproportionate to the offense. In fact, the harm to TBTA is minimized precisely because of the fines that plaintiffs challenge in this case. Without the fees, the fiscal harm to the agency would be substantial, and it would be difficult for the TBTA to collect tolls without deterring potential toll-violators. 

Student cannot sue Pace University over on-line classes during pandemic

Here is another COVID-19 case. This one involves higher education. Plaintiff was a master's degree student at Pace University whose education in the performing arts was disrupted by the pandemic in spring 2020 as the university moved the classes online, prompting plaintiff to sue for breach of contract, unjust enrichment and related state law claims. Plaintiff loses the case.

The case is Goldberg v. Pace University, issued on December 8. After the world shut down in early March 2020 due to the pandemic, Pace suspended in-class instruction for the rest of the spring semester. As we all know, schools and colleges were doing this all over the country. Is there case to be had for any of this? Plaintiff argued that this was a breach of contract because Pace did not refund the tuition over the course of 2.5 years in the Actors Studio program ($90,000). This is because he, like his classmates, was denied in-class instruction.

While colleges have an implied contract with their students to act in good faith, we look to the university's bulletins, circulars and regulations made available to the student to determining whether the college has acted in good faith. The student must show an express promise for certain specified services in the university's relevant materials. He must then show how the defendant breached that promise. Plaintiff loses this claim because Pace's written Emergency Closings provision allocated the risk to students if Pace needed to close due to an unforeseen, emergency circumstance outside of Pace's control. The provision did not allow Pace to completely shut down operations. As such, Pace was within its contractual rights to postpone services for plaintiff and move his classes online on account of the pandemic. The pandemic surely qualifies as such an emergency, the Court of Appeals (Raggi, Carney and Nathan) holds.

This reasoning carries over to plaintiff's other claims. Moving four of his classes to an online format falls within the Emergency Closings provision, and there is no promissory estoppel or unjust enrichment claim stemming from plaintiff's equitable reliance on any of Pace's promises. 

New York Court of Appeals says dog drug-sniff implicates the Fourth Amendment's protection against unreasonable searches and seizures

This ruling from the New York Court of Appeals breathes life into the Fourth Amendment's protection against unreasonable searches and seizures. The Court holds that the use of a narcotics-detection dog to sniff a defendant's body for evidence of a crime qualifies as a search, thus implicating the Fourth Amendment.

The case is People v. Butler, issued on December 19. It all began in 2017, when the police saw what looked like a drug deal in a parking lot known for such activity. The officers followed the defendant's vehicle down the street and stopped him after observing erratic driving maneuvers. The officers noticed a bulge in defendant's pants but defendant declined the officers' request to search him. Out comes the canine, named Apache, who sniff-tested the car for the presence of narcotics. The dog pulled on its leash toward defendant, suggesting it had caught the sense of narcotics in his groin/buttock region. Defendant then tried to run away. When the officers caught defendant on the run, they found drugs on his person. 

Is this search legal? Hard to believe the New York Court of Appeals has not resolved this issue before. The Supreme Court has not dealt with this issue either. The Court of Appeals resolves it now. After reviewing key Supreme Court cases on the issue, the Court reaches this conclusion:

we hold that the use of a canine to sniff defendant’s body for the presence of narcotics qualified as a search. This is true even if we accept County Court’s apparent conclusion that when Apache put its nose in defendant’s “groin/buttock region,” the dog did not make actual contact with defendant and sniffed only the air closely surrounding his person. The lack of direct physical contact is not dispositive in this context because of the “heightened” interest society recognizes in the privacy and security of the human body, which can encompass space immediately surrounding the body and was clearly implicated by what occurred here.

Next comes the ringing endorsement of the value of bodily integrity and the U.S. Constitution. 

It cannot be disputed that society treats many matters related to the body as private, or that individuals have a significant interest in the security and integrity of their persons. The Fourth Amendment protects those important interests from unreasonable intrusion by the government.  Indeed, although this Court has at times described governmental intrusion into the home as “the chief evil” against which the Fourth Amendment is directed, the text of the Constitution notably lists “[t]he right of the people to be secure in their persons” first among the several areas entitled to protection, and the Supreme Court has recognized the heightened nature of that interest.

Thus, the Supreme Court has long held that the Fourth Amendment is implicated when the government attempts to gather evidence of criminal activity from an individual’s person. It has recognized that a search occurs whether the particular method employed by the government entails a “compelled surgical intrusion into an individual’s body.”

What it means in this case is that the presence or absence of direct physical contact with the body does not determine whether "the governmental conduct implicates the right to bodily integrity under the Fourth Amendment. The question instead turns on whether the conduct compromises personal dignity and violates reasonable social expectations concerning the security of one's body" and related privacy issues.The dog sniff involves a significant intrusion on personal privacy, security and dignity, the Court of Appeals says. 

Most people 'deliberately attempt not to expose the odors emanating from their bodies to public smell and experience anxiety and embarrassment at the thought of emitting odors, demonstrating the sensitivity of the matter. Moreover, it is of little consolation in this context that the only information a canine may be capable of conveying to police is the presence of illegal drugs. The embarrassment and inconvenience of this type of search does not arise solely from fear that the canine will reveal the presence of contraband, but from the objectively undignified and disconcerting experience of having an unfamiliar animal place its snout and jaws in close proximity to—if not direct contact with—vulnerable parts of our bodies.

Much of this reasoning derives from a Fifth Circuit case from 1982. The New York Court of Appeals makes this language its own. The Court of Appeals also cites a law review article detailing how the police have used canines to intimidate and control people of color and marginalized communities. 

Now that we know the dog sniff implicates the Fourth Amendment and requires a more careful search-and-seizure analysis, the case returns to the County Court to reconsider whether this search violated the Fourth Amendment.