A good primer on why downsizing cases are difficult to win under the Age Discrimination in Employment Act

Another case from the Second Circuit reinforces how difficult it is to win an employment discrimination case, particularly when the plaintiff is fired due to corporate restructuring motivated by financial distress.

The case is Tillman v. Gernadier Realty Corp., a summary order issued on October 15. Plaintiff worked for this property management corporation where she held several roles relating to energy conservation. She claims she was fired after 40 years of employment due to her age.

The case does not survive summary judgment, however. One of defendant's largest clients was Starrett City a housing development in Brooklyn and defendant's most profitable contract. Much of plaintiff's work was devoted to Starrett City, and that contract contributed to more than one-third of defendant's revenue. The loss of that contract was a huge blow to plaintiff's employer. You are probably thinking this is a standard downsizing case, where management has to let people go to stay afloat financially, but the twist is that defendant first told plaintiff that she would remain in her position despite the organizational restructuring, as she had potential to contribute to other energy projects. But they fired her anyway.

The case fails, the Court of Appeals (Wesley, Bianco and Robinson) holds, because a consulting firm that management retained to evaluate its options recommended a comprehensive restructuring of the department overseen by plaintiff; this led to a new position for plaintiff. But the restructuring continued in the months that followed and the company pursued more cost-saving options, including outsourcing. After plaintiff rejected an outsourcing option that would have paid her $3,000 per month, she was terminated, and her duties were undertaken by third-party consultants. 

The Second Circuit says plaintiff cannot overcome this evidence that she was terminated for age-neutral reasons. She does point out that management asked her at one point how much longer she planned to work. But that is not evidence of age discrimination under Rankin v. Wyatt Co., 125 F.3d 55 (2d Cir. 1997). Asking questions about an employee's retirement plans does not violate the civil rights laws. That principle will remain with us forever, and it allows management to broach the subject without fear of being sued, unless management does so in an obnoxious and discriminatory manner. But merely asking an older worker about her retirement plans is not enough to prove age discrimination. While the Court does not cite this principle, it is also true that firing older workers to save money id not always proof that management was practicing age discrimination. And, while plaintiff argued that she was demoted and had to work under a much younger supervisor with a lower title in a department that did not "make sense," the Court returns to the company's need to restructure the company to save money. Nor is the Court of Appeals persuaded by plaintiff's statistical evidence that the company had a pattern of firing older employees

 

Warrantless police seach of parents' home on Long Island did not violate Constitution

The police in Rockville Centre, on Long Island, searched the property of Charles and Geraldine Griffin. They have since passed away. Their children, Caril and Craig, nonetheless claim the house was searched in violation of the Fourth Amendment. The issue is whether the children may pursue this case even though they did not own the house at the time of the search, and whether the police conducted the searched the property in good faith.

The case is Simmons v. Incorporated Village of Rockville Centre, a summary order issued on October 21. You have a reasonable expectation of privacy in your own house and on your property; that legal principle is rock-solid. But what if you don't live there but visit regularly? That is the case here. 

The problem is the Complaint is not specific on this issue. Caril asserts that she "regularly" spent time at her parents' property, but "says nothing about how frequently she stayed over of whether she had been staying over around the time of the alleged searches." Holiday visits would not be enough, the Court says. Nor is it enough to assert she maintained a bedroom on the property. The Court writes, "In the end, these sparse allegations and the lack of temporal context regarding Simmons’s  connection  to  the  Griffins’ property  render  impossible  any assessment of whether Simmons plausibly enjoyed a sufficient degree of acceptance into the Griffin household to trigger the Fourth Amendment’s protections." Caril's case was therefore properly dismissed at the Rule 12 stage, before she could take any discovery on the case.

Craig, the brother, also asserts a claim, which was dismissed on summary judgment, post-discovery. The searches in July 2012 and May 2013 are at issue. The July 2012 search cannot be challenged because the defendants were able to inspect the property following their observations from publicly accessible areas, like the mailman's route leading up the residence. It sounds like the police searched the property after viewing something suspicious from a publicly-accessible area, some kind of fire or safety hazard. As the Court notes, "officers need not shield their eyes when passing by the home on public thoroughfares."

Craig's other claim, however, is more complex, but he still loses. That search, on May 1, 2013, saw the Fire Safety Inspector and Fire Chief enter the property without as warrant and cut the padlock on the gate to access the Griffins' backyard. The district court granted these defendants qualified immunity on the theory that they acted in an objectively reasonable manner, and the Second Circuit (Carney, Sullivan and Lee) agrees, reasoning that they suspected a fire or safety hazard. The Court says this:

Upon their arrival, the defendants found the Griffins’ property in a “hazardous” and “threatening” condition.  Klugewicz [the Fire Safety Inspector] noticed a “strong smell of gas” emanating from the property, and the defendants also observed a worn extension cord on the porch.  In addition, the property’s yard was “completely overgrown,” the residence’s windows “could not be seen as they were blocked with extreme dirt and packed with clothes from inside the house,” and the premises were “so cluttered with motor vehicle parts, wires, debris, and propane [tanks] that it was a fire hazard.” The defendants accordingly determined that it was necessary to shut off the electrical service to the property and to immediately investigate the source of the smell.

Disability-related expulsion from son's basketball game does not violate Americans with Disabilities Act

This case was brought under the Americans with Disabilities Act. The plaintiff is the father of a high school basketball player who was expelled from an out-of-state athletic tournament, which prompted the basketball team, as a well as a team from a private league, to sever their relationships with the father and son, leaving the son without a team. The case was dismissed, and the Court of Appeals affirms, so the case is over.

The case is Lafayette v. Blueprint Basketball, a summary order issued on October 15. Here is what happened, according to the father: in 2018, the father suffered a traumatic brain injury while playing basketball; that injury has affected his emotions and limits his ability to interact with others. A year later, his son joined a private basketball club.When dad attended his son's basketball game, he was expelled following a dispute with "a game official," or referee. Dad sent an angry email that he claims was an instance of "impulsive symptomatic behavior." The son was next kicked off the team and the basketball director issued a no-trespass order against dad for the team practices. The son was also "not welcome" to join another team due to this dispute with Blueprint Basketball. The basketball coaches had "heavy concerns" about dad.

The ADA claim is dismissed. The Court of Appeals (Chin, Calabresi and Lee) holds that the Complaint asserts only that plaintiff and his son were barred due to plaintiff's disruptive behavior. While the disability might explain the father's outburst which resulted in the expulsion, the Second Circuit holds that such "misconduct is a legitimate and nondiscriminatory reason for terminating [the relationship], even when such misconduct is related to a disability."

The Court of Appeals had previously applied such reasoning to an employment case, McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012), a case that I handled. The idea is that even the expulsion from work (or an athletic event) stems from disability-related behavior, that does not give rise to an ADA violation, as some workplace behavior is too intolerable for management to accept even if the ADA prohibits disability discrimination. That rule is so rock-solid these days that Lafayette's case does not even proceed beyond the Rule 12 motion-to-dismiss stage, and he is unable to generate discovery to further support his claim.

 

The "mere inconvenience" exception to the Second Amendment

Gun litigation in the Second Circuit is now in full swing. Over the last few weeks, the Court has published several rulings largely affirming New York's gun control laws. In this case, the Court rules that provisions of New York's Concealed Carry Improvement Act do not violate the Second Amendment. These provisions include rules that require background checks on people who want to buy ammunition, among other things.

The case is New York State Firearms Association v. James, issued on October 15. Under the Second Amendment caselaw that has developed ever since the Supreme Court held in 2008, the Heller ruling, that the Second Amendment provides for the right of individual gun ownership, not every gun regulation will be stricken as unconstitutional, and no constitutional provision provides for absolute rights without an exceptions.

With that in mind, the Second Circuit (Bianco, Park and Nardini) notes as follows:

A law regulating the means of acquiring firearms and ammunition does not meaningfully constrain the right to possess arms unless it “is so restrictive that it threatens a citizen’s right to acquire firearms [and ammunition].” Mere inconveniences do not constitute such a threat. Thus, we have made clear that “gun buyers have no right to have a gun store in a particular location, nor a right to travel no more than short distances to the most convenient gun store that provides what they  deem  a  satisfactory  retail experience.” In other words, “the Second Amendment does not elevate convenience and preference over all other considerations, nor does it guarantee a certain type of retail experience.”

Let's call this the "mere inconvenience" exception to the Second Amendment. The Court adds, "consequences that are part and parcel of ordinary regulatory measures—such as reasonable processing times and the hassle of filling out paperwork—generally will not meaningfully impair one’s ability to acquire arms. Indeed, because the Supreme Court has recognized that 'laws imposing conditions and qualifications on the commercial sale of arms' are 'presumptively lawful regulatory measures,' the modest administrative burdens that naturally follow will not ordinarily be sufficient to overcome that presumption." We can call that the "hassle" exception to the Second Amendment.

With constitutional standards like this, you can see where this case is going. The mandatory background check on people who want to buy ammunition, such as bullets, is legal. So is the small fee to process such background checks. A brief delay in acquiring the gun is not unconstitutional, and neither is the  $2.50 fee to pay for background check.  

Note the three judges on this case were all appointed by the current President. Judge Bianco writes the majority opinion, as he did in the other recent Second Amendment cases. A coincidence, to be sure, as the judges are chosen at random. Many judges are known for their jurisprudence in one area. At this rate, Judge Bianco is now the Second Amendment authority at the Court of Appeals.

 

 

Court upholds $2+ million damages award in sexual harassment case

The Court of Appeals has sustained a largeverdict on behalf of a woman who prevailed at trial on her sex discrimination claim, holding that the damages award in the amount of $2 million is not excessive. This is among the few cases that hold that the plaintiff in such a case is entitled to over $1 million for pain and suffering.

The case is Pizarro v. Quezada, a summary order issued on October 9. Over the course of nine years, plaintiff was repeatedly sexually harassed. Her boss groped her three to four times perm month, told sexually explicit stories in her presence, and once masturbated in front of her. He also tried to rape her at work; another woman came to plaintiff's rescue, interrupting the attempted rape. 

The jury awarded plaintiff $1.725 in compensatory damages. That is not excessive under federal law ("shocks the conscience" test) and state law ("deviates materially" from similar cases). Since Title VII has a $300,000 cap and state law has no cap, the award is allocated under state law. 

The Court of Appeals (Chin, Nardini and Kahn) views this as a sexual assault case, noting that while her jury award "outstrips awards in many other cases involving workplace sexual harassment, even cases involving physical touching, . . . Pizarro’s testimony regarding Quezada’s attempt to forcibly rape her, which we must assume the jury credited in reaching its verdict, renders the jury’s award more comparable to cases directly involving sexual assault claims, which have tended to result in higher awards." Non-employment cases, i.e., cases involving negligence and actions against the police, awarding seven figures in damages are in line with this case. 

While plaintiff did not put on medical evidence to support her damages claim, that does not justify reducing the award. "True, corroborating medical or expert evidence of a plaintiff’s emotional distress is often introduced to substantiate a plaintiff’s account of her own distress, and district courts often point to the presence of such evidence to shore up the reasonableness of a jury award or a court’s own recommended award. But corroborating expert testimony or medical evidence of a plaintiff’s
distress is not required to sustain an award of emotional distress damages." We trust the jury on issues like this, and juries do not always need to hear from a medical professional on the value of the plaintiff's case. as "Pizarro submitted evidence that she attempted suicide, received psychiatric treatment for depression, suffered from PTSD, and had recurring nightmares . . . , we cannot say that the jury's $1.725 million compensatory damages award was excessive."

As for the punitive damages, they do not shock the conscience, the federal standard. Not only was the workplace sexual harassment "highly reprehensible," but the punitive damages are only 57% of the compensatory damages; while punitives that exceed the compensatory damages may be a problem, that is not a problem here. As the punitive damages are comparable to those awarded in other cases involving sexual violence -- even if they do not involve workplace harassment -- the award stands.

Inmate's gender dysphoria claim fails under qualified immunity

The Second Circuit has held that an inmate cannot win her lawsuit claiming the prison's failure to provide her with treatment for gender dysphoria and hormone therapy as well as a vaginoplasty violates the Constitution. The rationale is that the state of law was not clearly-established at the time of these alleged constitutional violations, entitling the defendants to qualified immunity.

The case is Clark v. Valletta, issued on October 6, nearly two years after oral argument. The reason for the delay is that this case is complex, and the majority opinion is met with a lengthy dissenting opinion in which the judge views the law differently and claims the majority has not properly applied the qualified immunity analysis.

Plaintiff is a transgender female who is, frankly, not the most sympathetic plaintiff, as she landed in jail after killing her ex-wife. The details of that crime are set forth in the majority ruling. More to the point, plaintiff wants treatment for her gender-related issues, but the jail said no. Hence, this lawsuit.

You cannot win a damages claim under the Constitution if your lawsuit does not assert the violation of a clearly-established right. That means you cannot just point to a constitutional provision and claim it's violation entitles you to a judgment in your favor. You have to identify prior case law from the Supreme Court or the Second Circuit that is sufficiently identical to yours, such that the defendants were on notice that they were violating your rights. The problem for plaintiff is that the issues raised in this case, relating to transgender medical treatment, are too recent and have not yet yielded the favorable court rulings that would repel a motion to dismiss based on qualified immunity.

While the district court allowed this case to proceed, rejecting the qualified immunity defense, the Court of Appeals (Sullivan, Park and Robinson [partial dissent]) says the lower court did not particularize that inquiry and instead "conduct[ed] its qualified immunity analysis at too high a level of generality." The district court defined the relevant right as "the right to be free from deliberate indifferent to serious medical needs." There is such a right, but that is too general a statement, the Second Circuit says. The correct formulation is whether that right extends to the particular circumstances of this case. It does not, at least not yet. That dooms the case. As "neither the Supreme Court nor this Court has recognized, much less clearly established, any constitutional right to specific gender-dysphoria treatments," qualified immunity attaches and the case is over.

Plaintiff cannot win discriminatory demotion claim

A white New York City employee who claims she was demoted because of her race cannot prevail at trial on her discrimination claim, the Court of Appeals holds.

The case is Chislett v. New York City Department of Education, issued on September 26. You can read about plaintiff's meritorious racial harassment claim at this link. While that claim will proceed to trial, plaintiff's demotion claim will not. The Department said plaintiff was stripped of her supervisory responsibilities because her team did not think she was an effective leader and she had created chaos and a negative work environment. In light of this defense, to win the case, plaintiff has to show either that the articulated justification for her demotion was knowingly false or issued in bad faith or that some other evidence supports a finding of discriminatory intent. 

Although the workplace was permeated with anti-white bias, that does not support her disparate treatment claim. I am sure her argument was that the jury may view the evidence holistically and find that the hostile work environment spilled over into the decision to demote the plaintiff. But the Court (Leval, Nardini and Bianco) examines the demotion claim separately from the harassment claim, holding that since plaintiff was unable to refute her supervisor's testimony that she had received numerous negative evaluations about her supervisory practices. Bad evaluations can be the death knell of a discrimination claim. Unless the plaintiff can show the supervisor was motivated by racial discrimination in drafting them, or that the supervisor himself made racist comments that rendered the negative evaluations unreliable, the courts will defer to management's view on how the plaintiff performed her duties. 

Interesting footnote on the disparate treatment claim. In summarizing the plaintiff's prima facie burden under McDonnell Douglas, the Court notes the plaintiff has to present "some minimal evidence suggesting an inference that the employer acted with discriminatory motivation." That language has been kicking around for years, and the Court pulls it from Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). (If the plaintiff makes out a prima facie case, the employer has to advance a natural reason for the adverse personnel action and, to win, the plaintiff must show the real reason was discrimination). But the Court also says that "in McDonnell Douglas itself, which was a case involving allegations of racially discriminatory denial of employment, for the fourth factor, the Supreme Court specified that 'the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.'” 

However, the Second Circuit goes on to say that "the Supreme Court more recently ceased to rely on this requirement in Title VII cases, apparently recognizing that it had no application to cases involving other adverse employment actions and furthermore that this factor was not useful." For this proposition, the Circuit cites Ames v. Ohio Dep’t Youth Servs., 605 U.S. 303 (2025) (explaining that a plaintiff may establish a prima facie case “simply by presenting evidence ‘that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination’”). Does this mean that it no longer matters if the employer kept the position open and looked for other candidates? Or is that evidence still enough to prove a prima facie case but that plaintiffs have other ways to prove it, too? Can the latter formulation be the case if the Second Circuit has long said the prima facie case may be proven through other evidence of discriminatory motivation? My guess is that the "position remained open" option remains viable under the prima facie framework, as the footnote further notes that "the fourth element set forth in McDonnell Douglas is a flexible one that can be satisfied differently in differing factual scenarios."