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Take a good look at the fellas who sit on your Town Board. You may think they are clowns, but they have a tremendous amount of authority to make decisions that affect our everyday lives, including authority to shape zoning decisions. Suing them in federal court is close to impossible. Particularly under the Equal Protection Clause.
The case is Ruston v. Town Board of Skaneateles, decided on July 8. The Ruston family owned land in upstate New York. They wanted to subdivide it. Local authorities said no. So the family sued under the Equal Protection Clause. At the time, this must have seemed like a good idea. In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the Supreme Court said that the Equal Protection Clause recognizes some lawsuits against municipalities if the plaintiffs were singled out in the provision of community services. This was called "class of one" litigation, which requires proof that the town or village intentionally treated the plaintiffs differently than similarly-situated (or comparable) residents without any rational basis.
While the Rustons had high hopes when they brought this action in Northern District of New York, this case dies a quick death in the Court of Appeals (Jacobs, McLaughlin and Sack), which takes a moment to bury a seven year-old precedent, DeMuria v. Hawkes, 328 F.3d 704 (2d Cir. 2003), which made it easier to bring these cases. But a lot has happened in seven years, in particular, the Supreme Court's ruling in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), which requires plaintiffs to plead in their complaints a "plausible" claim for relief, a legal standard which for all intents and purposes wiped out the tried-and-true "notice pleading" requirement, which placed upon plaintiffs a minimal burden in moving their cases forward.
The Rustons' case against the Town is dismissed because their "class-of-one" equal protection claim does not allege enough facts to support the claim that the Town favored other, similarly-situated landowners. Their claim against the Village Board on similar grounds does allege factual particulars, but the property owners favored by the Village are not similarly-situated to the Rustons. In other words, these other properties -- including a house built in 1987, a country-club that was renovated in the 1990s, an luxury spa and a large commercial building -- are not sufficiently comparable to the Rustons, who wanted to subdivide their property to build a 14-unit subdivision. Under the class-of-one cases, the Rustons have to show the court that they were so comparable to the favored landowners that the municipalities could only have treated them differently for utterly irrational reasons. Since this lawsuit on its face does not make that allegation, the complaint is dismissed.
Monday, August 30, 2010
Thursday, August 26, 2010
Sexual harassment: we know it when we see it
What does it take to win a hostile environment case? Nobody knows. You know a hostile work environment when you see it.
The case is Leifer v. New York State Division of Parole, a summary order decided on August 23. Leifer is a Jewish employee whose supervisors made various religiously-hostile comments. The district court rejected the religious harassment claim. The Court of Appeals (Hall, Straub and Eaton [D.J.]) reinstates the case.
Leifer was subjected to six hostile comments from supervisors over a three-year period. Here they are:
The Second Circuit notes that while these statements, by themselves, "may not allow a reasonable trier of fact to conclude based on that act alone that Leifer was subjected to a hostile work environment[,] [W]hen viewed in toto, however, drawing all reasonable inferences in Leifer's favor, there is a genuine issue of fact whether the acts in question had an adverse effect on, or altered the conditions of, Leifer's employment." The question is, does this harassment alter the conditions of Leifer's employment "for the worse?" They might, and that's enough to vacate summary judgment.
So Leifer had six incidents in three years. The Court of Appeals distinguishes this case from Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002), which rejected a hostile work environment case where the plaintiff had five incidents in four years. This case is also distinguished from an unpublished district court action, Shabat v. Blue Cross Blue Shield, where the plaintiff had nine hostile incidents in 3.5 years. Every case is distinguishable from any other case, and the Second Circuit says that "the frequency and severity of harassment demonstrated in prior cases does not mandate a specific level of harassment that future plaintiffs must demonstrate to avoid summary judgment against them."
The case is Leifer v. New York State Division of Parole, a summary order decided on August 23. Leifer is a Jewish employee whose supervisors made various religiously-hostile comments. The district court rejected the religious harassment claim. The Court of Appeals (Hall, Straub and Eaton [D.J.]) reinstates the case.
Leifer was subjected to six hostile comments from supervisors over a three-year period. Here they are:
(1) Dress’s statement that Jewish laws and customs were not binding on him and that he would not reschedule meetings because of Jewish holidays; (2) Dress’s statement that “you are not like the rest of us . . . . You are like Saddam Hussein”; (3) the failure to apprehend the individual responsible for defacing Leifer’s wedding photo; (4) Oeser’s refusal to grant Leifer an extended lunch hour during Passover; (5) Hoy’s directive that Leifer remove pictures from his wall displaying political figures near Menorahs; and (6) Hoy’s statement about filing false complaints of anti-Semitism.
The Second Circuit notes that while these statements, by themselves, "may not allow a reasonable trier of fact to conclude based on that act alone that Leifer was subjected to a hostile work environment[,] [W]hen viewed in toto, however, drawing all reasonable inferences in Leifer's favor, there is a genuine issue of fact whether the acts in question had an adverse effect on, or altered the conditions of, Leifer's employment." The question is, does this harassment alter the conditions of Leifer's employment "for the worse?" They might, and that's enough to vacate summary judgment.
So Leifer had six incidents in three years. The Court of Appeals distinguishes this case from Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002), which rejected a hostile work environment case where the plaintiff had five incidents in four years. This case is also distinguished from an unpublished district court action, Shabat v. Blue Cross Blue Shield, where the plaintiff had nine hostile incidents in 3.5 years. Every case is distinguishable from any other case, and the Second Circuit says that "the frequency and severity of harassment demonstrated in prior cases does not mandate a specific level of harassment that future plaintiffs must demonstrate to avoid summary judgment against them."
Tuesday, August 24, 2010
ACORN takes it on the chin
If anyone got snagged in the modern culture wars, it was ACORN, the community service program that became a conservative target and found itself in the national crosshairs after guerrilla activists caught some ACORN staffers on videotape in embarrassing scenarios. When Congress cut off federal finding for ACORN, the organization sued, claiming this was a Bill of Attainder. The district court ruled in ACORN's favor, but the Court of Appeals reverses, and ACORN loses.
The case is ACORN v. United States, decided on August 13. It's always a strange political culture that acquaints us with obscure constitutional provisions. When Nixon wouldn't hand over the tapes in the early 1970s, we had to familiarize ourselves with Executive Privilege. When Clinton got caught up in a sex scandal in 1998, we had to review the impeachment provisions. And when Republicans went after ACORN, we learned about the Bill of Attainder.
The Bill of Attainder Clause prohibits any "law that legislatively determines guilt and inflicts punishment upon an identifiable individual (including corporations) without provision of the protections of a judicial trial." The question here is whether the funding cutoff is a "punishment" under the Bill of Attainder Clause. It isn't. The Second Circuit (Miner, Cabranes and Wesley) notes that ACORN was not permanently banned from federal funding and it rejects the argument that even a temporary cutoff that could destroy the organization equals punishment under the Constitution, particularly since ACORN only receives 10 percent of its funding from federal grants. The Court says, "we doubt that the direct consequences of the appropriations laws temporarily precluding ACORN from federal funds are 'disproportionally severe' or 'so inappropriate' as to constitute punishment per se."
ACORN could win the case if the funding cutoff was a functional punishment, i.e., if the legislative action constitutes a grave imbalance or disproportion between the burden on ACORN and the legislative purpose. That argument is rejected because, among other reasons, the congressional funding decision affected other, related organizations also and therefore ACORN was not the only organization affected. Finally, while a Bill of Attainder may exist if Congress clearly intended to punish the organization, while some conservatives in Congress went out of their way to condemn ACORN and called it a "criminal enterprise," Congress as a body did not make any findings of guilt to that effect.
ACORN may yet win the case, but not under the Bill of Attainder Clause. The case is remanded to the district court to take up ACORN's First Amendment and due process claims.
The case is ACORN v. United States, decided on August 13. It's always a strange political culture that acquaints us with obscure constitutional provisions. When Nixon wouldn't hand over the tapes in the early 1970s, we had to familiarize ourselves with Executive Privilege. When Clinton got caught up in a sex scandal in 1998, we had to review the impeachment provisions. And when Republicans went after ACORN, we learned about the Bill of Attainder.
The Bill of Attainder Clause prohibits any "law that legislatively determines guilt and inflicts punishment upon an identifiable individual (including corporations) without provision of the protections of a judicial trial." The question here is whether the funding cutoff is a "punishment" under the Bill of Attainder Clause. It isn't. The Second Circuit (Miner, Cabranes and Wesley) notes that ACORN was not permanently banned from federal funding and it rejects the argument that even a temporary cutoff that could destroy the organization equals punishment under the Constitution, particularly since ACORN only receives 10 percent of its funding from federal grants. The Court says, "we doubt that the direct consequences of the appropriations laws temporarily precluding ACORN from federal funds are 'disproportionally severe' or 'so inappropriate' as to constitute punishment per se."
ACORN could win the case if the funding cutoff was a functional punishment, i.e., if the legislative action constitutes a grave imbalance or disproportion between the burden on ACORN and the legislative purpose. That argument is rejected because, among other reasons, the congressional funding decision affected other, related organizations also and therefore ACORN was not the only organization affected. Finally, while a Bill of Attainder may exist if Congress clearly intended to punish the organization, while some conservatives in Congress went out of their way to condemn ACORN and called it a "criminal enterprise," Congress as a body did not make any findings of guilt to that effect.
ACORN may yet win the case, but not under the Bill of Attainder Clause. The case is remanded to the district court to take up ACORN's First Amendment and due process claims.
Friday, August 20, 2010
Retaliation claim proves once again the cover-up is worse than the crime
We've seen it many times: the underlying discrimination claim is dismissed but the retaliation case growing out of the meritless claim is good enough for trial. The cover-up is worse than the crime.
The case is Ragusa v. Malverne Union Free School District, a summary order decided on June 21. Ragusa was a disabled math teacher, but she does not satisfy the Americans With Disabilities Act's strict definition of "disabled." While she underwent surgery to remove a benign brain tumor, a hearing aid allows her to hear properly. While she is unable to blink her left eye, causing her to suffer painful infections and requiring frequent eye-drops, she was able to use medication that eliminated the need for the eye drops. Her walking and speaking impairments are not deemed serious enough to qualify as ADA disabilities, either. She did not suffer the substantial limitation of a major life activity, a requirement under the statute, and so management was not required to honor her request for a reasonable accommodation. (Under the amended ADA, her hearing and vision problems may in fact qualify as protected disabilities despite the corrective measures, but this case is decided under the old ADA).
However, she presents enough evidence for trial on the retaliation claim. Ragusa was fired shortly after her lawyer contacted the school district about the alleged discrimination. But any inference of retaliation is rebutted by evidence that Ragusa's poor performance was documented 25 times in detailed classroom observations.
While the termination claim is dismissed for good, she can proceed on a different retaliation claim alleging that the school district jerked her around in subjecting her to more difficult employment conditions. After she requested an accommodation for her disability, the school rejected that request and instead placed her in a separate building across the street, requiring her to teach students outside her certification, including special education students who needed close supervision. In the context of Ragusa's right to ask for a reasonable accommodation, even if she did not have a protected ADA disability, "the added challenge of the sixth-grade assignment" was enough to dissuade a reasonable employee from asserting her rights. The dissuasion argument grows out of the Supreme Court's recent case holding that management's response to protected activity constitutes an "adverse employment action" if it would make employees think twice about that engaging in that activity in the future. See, Burlington Northern v. White, 548 U.S. 53 (2006).
In a different context, the classroom transfer might not qualify as an "adverse employment action." But in this retaliation case, the jury may find that it does. This is why retaliation cases often go to trial even if the plaintiff did not in fact engage in protected activity. So long as she asserted her rights in good faith, the employer cannot under the civil rights laws retaliate like this. So, while Ragusa's damages claim falls out of the picture, her less lucrative retaliation claim arising from the classroom assignment goes to trial. If she wins, she gets some damages, just not all of them. And, as they say, something is better than nothing.
The case is Ragusa v. Malverne Union Free School District, a summary order decided on June 21. Ragusa was a disabled math teacher, but she does not satisfy the Americans With Disabilities Act's strict definition of "disabled." While she underwent surgery to remove a benign brain tumor, a hearing aid allows her to hear properly. While she is unable to blink her left eye, causing her to suffer painful infections and requiring frequent eye-drops, she was able to use medication that eliminated the need for the eye drops. Her walking and speaking impairments are not deemed serious enough to qualify as ADA disabilities, either. She did not suffer the substantial limitation of a major life activity, a requirement under the statute, and so management was not required to honor her request for a reasonable accommodation. (Under the amended ADA, her hearing and vision problems may in fact qualify as protected disabilities despite the corrective measures, but this case is decided under the old ADA).
However, she presents enough evidence for trial on the retaliation claim. Ragusa was fired shortly after her lawyer contacted the school district about the alleged discrimination. But any inference of retaliation is rebutted by evidence that Ragusa's poor performance was documented 25 times in detailed classroom observations.
While the termination claim is dismissed for good, she can proceed on a different retaliation claim alleging that the school district jerked her around in subjecting her to more difficult employment conditions. After she requested an accommodation for her disability, the school rejected that request and instead placed her in a separate building across the street, requiring her to teach students outside her certification, including special education students who needed close supervision. In the context of Ragusa's right to ask for a reasonable accommodation, even if she did not have a protected ADA disability, "the added challenge of the sixth-grade assignment" was enough to dissuade a reasonable employee from asserting her rights. The dissuasion argument grows out of the Supreme Court's recent case holding that management's response to protected activity constitutes an "adverse employment action" if it would make employees think twice about that engaging in that activity in the future. See, Burlington Northern v. White, 548 U.S. 53 (2006).
In a different context, the classroom transfer might not qualify as an "adverse employment action." But in this retaliation case, the jury may find that it does. This is why retaliation cases often go to trial even if the plaintiff did not in fact engage in protected activity. So long as she asserted her rights in good faith, the employer cannot under the civil rights laws retaliate like this. So, while Ragusa's damages claim falls out of the picture, her less lucrative retaliation claim arising from the classroom assignment goes to trial. If she wins, she gets some damages, just not all of them. And, as they say, something is better than nothing.
Wednesday, August 18, 2010
"Capturing the Friedmans" sex-abuse fails on technicality
The Court of Appeals has rejected as untimely a challenge to a highly unreliable sex abuse conviction, but not without strongly suggesting that the Nassau County District Attorney take a hard look at the case that inspired "Capturing the Friedmans," a documentary that questions whether a Long Island teenager was railroaded into pleading guilty to crimes that he did not commit.
The case is Friedman v. Rehal, decided on August 16. This is a sad case that reminds us of the mass hysteria that erupted in the 1980s over child molestation allegations, many of which yielded criminal convictions that were vacated on appeal due to the suggestive questioning of children by zealous investigators. The Friedmans, father and son, were among the victims.
Arnold Friedman and his son Jesse gave computer classes at their home on Long Island. In 1987-88, without physical evidence or any complaints of abuse, they were arrested for allegedly molesting a large number of their 8-12 year-old students. The Second Circuit details how the Friedmans were railroaded into pleading guilty, as the community was whipped into a frenzy when the charges were publicized and the local judge presiding over the case decided they were guilty even before she began hearing evidence and threatened to lock up Jesse and throw away the key. The alleged victims were subject to aggressive and suggestive questioning by investigators who would not give up until they got more "accounts" of sexual abuse. The father plead guilty so that his son might have a better chance of acquittal. The son, Jesse, plead guilty under duress.
Years later, Jesse moves to vacate his conviction. He cannot do so. The petition for habeas corpus is untimely. Convicts have only one year to seek habeas relief; for various reasons, Jesse filed his challenge beyond the one year deadline. An exception to the one-year rule permits untimely petitions upon a claim of "actual innocence," but that's a tough one. Jesse says the prosecutors violated his Brady rights in failing to produce evidence that the police used hypnosis in order to implicate him. The hypnosis may have produced a "false memory" from the alleged victim and provided Jesse some ammunition on cross-examination at trial. But the Second Circuit (Raggi, Pooler and Korman [D.J.] says that withholding this kind of impeachment evidence prior to a guilty plea is not a Brady violation. No dice for Jesse.
You have the sense that the Second Circuit would grant Jesse's petition if it could. The Court of Appeals spends the second half of the opinion summarizing the "false memory" convictions during the 1980s and 1990s, when innocent people went to jail for child abuse, only to be vindicated later on, after the courts took a hard look at the questionable interviewing techniques that prompted children to falsely claim sexual abuse. Jesse's case falls squarely within that pattern. The best that the Second Circuit can do is to urge the District Attorney's office to take another look at his case and take seriously her ethical obligation to ensure that justice was done.
The case is Friedman v. Rehal, decided on August 16. This is a sad case that reminds us of the mass hysteria that erupted in the 1980s over child molestation allegations, many of which yielded criminal convictions that were vacated on appeal due to the suggestive questioning of children by zealous investigators. The Friedmans, father and son, were among the victims.
Arnold Friedman and his son Jesse gave computer classes at their home on Long Island. In 1987-88, without physical evidence or any complaints of abuse, they were arrested for allegedly molesting a large number of their 8-12 year-old students. The Second Circuit details how the Friedmans were railroaded into pleading guilty, as the community was whipped into a frenzy when the charges were publicized and the local judge presiding over the case decided they were guilty even before she began hearing evidence and threatened to lock up Jesse and throw away the key. The alleged victims were subject to aggressive and suggestive questioning by investigators who would not give up until they got more "accounts" of sexual abuse. The father plead guilty so that his son might have a better chance of acquittal. The son, Jesse, plead guilty under duress.
Years later, Jesse moves to vacate his conviction. He cannot do so. The petition for habeas corpus is untimely. Convicts have only one year to seek habeas relief; for various reasons, Jesse filed his challenge beyond the one year deadline. An exception to the one-year rule permits untimely petitions upon a claim of "actual innocence," but that's a tough one. Jesse says the prosecutors violated his Brady rights in failing to produce evidence that the police used hypnosis in order to implicate him. The hypnosis may have produced a "false memory" from the alleged victim and provided Jesse some ammunition on cross-examination at trial. But the Second Circuit (Raggi, Pooler and Korman [D.J.] says that withholding this kind of impeachment evidence prior to a guilty plea is not a Brady violation. No dice for Jesse.
You have the sense that the Second Circuit would grant Jesse's petition if it could. The Court of Appeals spends the second half of the opinion summarizing the "false memory" convictions during the 1980s and 1990s, when innocent people went to jail for child abuse, only to be vindicated later on, after the courts took a hard look at the questionable interviewing techniques that prompted children to falsely claim sexual abuse. Jesse's case falls squarely within that pattern. The best that the Second Circuit can do is to urge the District Attorney's office to take another look at his case and take seriously her ethical obligation to ensure that justice was done.
Tuesday, August 17, 2010
Circuit sustains First Amendment challenge by dissenting non-union members
Non-union members can be compelled to pay union dues if the union is using that money for non-ideological activity that benefits all employees, including the people who opted out of the union. That issue is tricky enough, but it gets even more complicated when we move to the fringes of permissible activity, i.e., when can the union charge non-members for its organizing activities?
The case is Scheffer v. Civil Service Employees Association, decided on June 28. The union here represents employees in the developmental disability, food service and courier industries which "have faced increased threats to their job security, wages, and benefits in recent years due to employers' efforts to contract out their work to non-union, private-sector employees in the same industries," the Court of Appeals observes. In addition, additional non-union employees have impaired CSEA's ability to achieve wage and benefit gains for its members. Public-sector employers in New York are trying to drive down wages by pointing to the lower wages among non-union employees in these industries.
Despite the challenges faced by the union, the non-union plaintiffs are entitled to summary judgment on their First Amendment claim that they do not have to pay for CSEA's organizing. While organizing is critical to CSEA's mission, these particular plaintiffs can opt out of those dues. As probationary employees, "they derive little meaningful benefit from the unionization of workers in the developmental disability, food service and courier industries, and therefore present no free-rider problem by not paying the costs of this organizing," the Court of Appeals (Parker, Jacobs and McLaughlin) holds.
The union argued that "higher union density in the public sector contributes to union bargaining power -- the ability of a union to negotiate better wages and benefits for those the union represents." Interesting theory, but the Second Circuit is not buying it. The Court reasons:
This analysis is complex, further supporting my theory that nothing is more complicated in constitutional law than First Amendment litigation. But in his concurring opinion, Judge Jacobs would "decide this case on an alternative basis that is simple, obvious, and available. I would hold -- categorically -- that the First Amendment is violated when public-sector unions charge dissenting nonmembers the cost of organizing private-sector employees."
As Judge Jacobs sees it, union organizing is an ideological proposition: "that government employment should be augmented and that privatization should be frustrated and prevented." He notes the ongoing political debate over whether to privatize public services and says that courts should not presume that the union's goal of reducing competition with the private sector "trumps the First Amendment right to agitate for reform, austerity, and economy in government."
The case is Scheffer v. Civil Service Employees Association, decided on June 28. The union here represents employees in the developmental disability, food service and courier industries which "have faced increased threats to their job security, wages, and benefits in recent years due to employers' efforts to contract out their work to non-union, private-sector employees in the same industries," the Court of Appeals observes. In addition, additional non-union employees have impaired CSEA's ability to achieve wage and benefit gains for its members. Public-sector employers in New York are trying to drive down wages by pointing to the lower wages among non-union employees in these industries.
Despite the challenges faced by the union, the non-union plaintiffs are entitled to summary judgment on their First Amendment claim that they do not have to pay for CSEA's organizing. While organizing is critical to CSEA's mission, these particular plaintiffs can opt out of those dues. As probationary employees, "they derive little meaningful benefit from the unionization of workers in the developmental disability, food service and courier industries, and therefore present no free-rider problem by not paying the costs of this organizing," the Court of Appeals (Parker, Jacobs and McLaughlin) holds.
The union argued that "higher union density in the public sector contributes to union bargaining power -- the ability of a union to negotiate better wages and benefits for those the union represents." Interesting theory, but the Second Circuit is not buying it. The Court reasons:
The union density theory fails to explain how organizing private-sector workers benefits union-represented public-sector employees who do not compete for jobs with the workers being organized. Here, the union has presented no evidence that probation officers compete for jobs with workers in the developmental disability, food service, and courier industries. Indeed, it is self-evident that probation officers do not do the same work as those who work in the developmental disability, food service, or courier industries. Nor do probation officers compete with people who do those jobs, except to the extent that everybody competes with everybody.
This analysis is complex, further supporting my theory that nothing is more complicated in constitutional law than First Amendment litigation. But in his concurring opinion, Judge Jacobs would "decide this case on an alternative basis that is simple, obvious, and available. I would hold -- categorically -- that the First Amendment is violated when public-sector unions charge dissenting nonmembers the cost of organizing private-sector employees."
As Judge Jacobs sees it, union organizing is an ideological proposition: "that government employment should be augmented and that privatization should be frustrated and prevented." He notes the ongoing political debate over whether to privatize public services and says that courts should not presume that the union's goal of reducing competition with the private sector "trumps the First Amendment right to agitate for reform, austerity, and economy in government."
Monday, August 16, 2010
Constantly calling female subordinate a "bitch" may violate Title VII
The Court of Appeals holds that a female field technician who was given unequal working assignments and discipline at Verizon can sue for a hostile work environment on the basis of her gender.
The case is Pucino v. Verizon, decided on August 13. Bergstein & Ullrich, LLP, represents the successful plaintiff, whose case gives the Court of Appeals (Raggi, Winter and Livingston) an opportunity to clarify when the word "bitch" can support a hostile work environment claim.
Normally, hostile work environment cases involve explicit sexual harassment in the form of groping, sexual comments, etc. But these cases can also allege that the plaintiff suffered a hostile work environment on the basis of severe or pervasive gender discrimination that has nothing to do with sex. That is what happened here. Unlike her male co-workers, Pucino was subjected "to disparately harsh working conditions." Contrary to procedure, she was sent by herself to dangerous neighborhoods, given unequal assignments, tools and equipment and discipline. The male-dominated workplace also went bananas when they found out that Pucino complained about this discrimination to the company's EEO office, and someone put a dead snake in her truck in retaliation.
Verbal harassment by Pucino's superiors also created a sex-based hostile environment. Two male supervisors constantly called Pucino a bitch. This word is not always gender-specific ("Son of a bitch" is not sexist) but it usually is. This issue is for the jury. The Second Circuit holds that "we ... have no doubt that such a trier could find that [the supervisor's] 'constant' use of the word over several years in the context of the present record was sex-based and reflected hostility to women."
Pucino cannot win the case unless she was abused on the basis of her gender enough times to create a hostile work environment. Like many harassment plaintiffs, the harassment happens too often for Pucino to say exactly when all the abuse happened. Citing Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), the Court reminds us that "a plaintiff ... need not recount each and every instance of abuse to show pervasiveness." The Court concludes, "Pucino's evidence fits within the Torres precedent. She has described the nature of the alleged abuse in some detail. Although she omitted specifics as to the date and circumstances of each instance of abuse, her testimony was corroborated by other witnesses." Summary judgment reversed, and the case is remanded for trial.
The case is Pucino v. Verizon, decided on August 13. Bergstein & Ullrich, LLP, represents the successful plaintiff, whose case gives the Court of Appeals (Raggi, Winter and Livingston) an opportunity to clarify when the word "bitch" can support a hostile work environment claim.
Normally, hostile work environment cases involve explicit sexual harassment in the form of groping, sexual comments, etc. But these cases can also allege that the plaintiff suffered a hostile work environment on the basis of severe or pervasive gender discrimination that has nothing to do with sex. That is what happened here. Unlike her male co-workers, Pucino was subjected "to disparately harsh working conditions." Contrary to procedure, she was sent by herself to dangerous neighborhoods, given unequal assignments, tools and equipment and discipline. The male-dominated workplace also went bananas when they found out that Pucino complained about this discrimination to the company's EEO office, and someone put a dead snake in her truck in retaliation.
Verbal harassment by Pucino's superiors also created a sex-based hostile environment. Two male supervisors constantly called Pucino a bitch. This word is not always gender-specific ("Son of a bitch" is not sexist) but it usually is. This issue is for the jury. The Second Circuit holds that "we ... have no doubt that such a trier could find that [the supervisor's] 'constant' use of the word over several years in the context of the present record was sex-based and reflected hostility to women."
Pucino cannot win the case unless she was abused on the basis of her gender enough times to create a hostile work environment. Like many harassment plaintiffs, the harassment happens too often for Pucino to say exactly when all the abuse happened. Citing Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), the Court reminds us that "a plaintiff ... need not recount each and every instance of abuse to show pervasiveness." The Court concludes, "Pucino's evidence fits within the Torres precedent. She has described the nature of the alleged abuse in some detail. Although she omitted specifics as to the date and circumstances of each instance of abuse, her testimony was corroborated by other witnesses." Summary judgment reversed, and the case is remanded for trial.
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