Court rejects continuing violations deadline extension in failure-to-train case

This case teaches us some painful lessons about statutes of limitations. While Title VII relaxes the SOL in certain cases under the continuing violations doctrine, it does not help the plaintiff in this case because he was aware of certain adverse employment actions while they were happening and therefore had to file an EEOC charge at that time.

The case is Tassy v. Buttigieg, issued on October 20. Plaintiff worked for the Federal Aviation Administration and was denied a series of training opportunities. In hostile work environment cases, where the abuse is ongoing, the statute of limitations starts to run on the date of the last hostile act. The reason for this is that the employee may not be fully cognizant of the hostile environment right away, as HWE cases require a series of hostile acts for there to be a claim under Title VII. But promotion denials and other discrete acts of discrimination do not fall into that exception, as these personnel decisions are apparent on the day they take place. As discrete acts are easy to identify, you cannot wait for a series of promotion denials to unfold before filing an EEOC charge. The Supreme Court said that in National Railroad Passenger Corp. v. Morgan, 536 U.S. 135 (2002). 

Plaintiff must not have filed an EEOC charge during the early training denials. His failure-to-trail claims were dismissed in the district court. Hence this appeal. He argues that the training denials were part of an ongoing pattern of harassment and that the short federal EEO deadline was not waived. But the Court of Appeals (Livingston, Pooler and Sack) says that training denials are among the discrete acts that must be grieved within the EEOC deadline and cannot comprise a continuing violation that we associate with HWE claims. 

What this means is that when Tassy went to the federal EEO office with his discrimination charge, his failure to train claims were untimely because none had happened in the previous 45 days, the deadline for EEO charges when you work for the federal government. He tries to get around this by stating that other acts of discrimination took place during those 45 days, which included management ignoring his training requests. The Court says this conclusory allegation in his affidavit is not enough to make the claims timely His "vague reference to 'repeatedly . . . rebuffed' requests is insufficient to support his claim that discrete acts of discriminatory conduct occurred throughout the entirety of his time" at the federal office where he worked. Practice tip: summary judgment affidavits need to be as detailed as possible.

What about plaintiff's claim that the training denials were part of a larger pattern of discriminatory conduct in the workplace, creating an overall HWE? This is a creative argument, as negative personnel decisions can in fact support a HWE claim in certain circumstances. If that argument has merit, then Tassy can invoke the continuing violations rule. The Court rejects that argument, noting that the Supreme Court has already "rejected the . . . view that a series or pattern of ‘related discrete acts’ could constitute one continuous ‘unlawful employment practice’ for purposes of the statute of limitations." To the contrary, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges,” as “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” This language comes from the Morgan ruling, and Chin v. Port Authority, 685 F.3d 135 (2d Cir. 2012).

Circuit vacates discrimination ruling in Delta Air Lines racial discrimination case

In June 2022, the Court of Appeals issued ruling that rejected a Delta flight attendant's discrimination claims under the New York City Human Rights Law. I wrote about that case at this link. On the plaintiff's motion for a rehearing, the Court has now vacated that ruling, stripping it of any precedential value, and replaced it with a non-precedential summary order that alters the analysis. The plaintiff still loses.

The case is Leroy v. Delta Air Lines, issued on October 21. The original published opinion was worrisome for plaintiffs' lawyers because it arguably did not expansively interpret the City law as required by the statutory construction baked into the law, which the City Council amended in 2006 and 2016. So this is better news for the plaintiffs' bar than it is for plaintiff herself, who loses the case for good.

It all started when an airline passenger called plaintiff a "black bitch," prompting plaintiff to complain to the pilot, who first demanded that plaintiff step out onto the jet bridge with the passenger before asking the Operations Control Center to remove plaintiff from the flight after she objected to the jet bridge demand. OCC removed plaintiff from the flight. Plaintiff then had to complete a FACTS report on the incident. According to the report, when the pilot asked Leroy “if [she] wanted to resolve the situation,” she said “the situation was resolved.” Also, a departure delay was announced prior to the passenger’s racial slur. Thereafter, after Carns intervened, Leroy spoke to the OCC “a couple of times” while on the plane and informed the OCC that she “was very ok” and “serving [her] first class [passengers] laughing and trying to smooth over the ATC delay with them.” When plaintiff complained about this incident to another supervisor, Gilmartin, she was removed from a working trip over a drug test, which led to her suspension even though plaintiff was not taking any drugs. While Gilmartin told plaintiff she was wrongfully suspended, she was fired 17 days later when Delta accused plaintiff of not showing up for a substance test.

In this Rule 12 posture, the majority (Bianco and Walker) issues two holdings: (1) Delta is not liable for the passenger's discriminatory remark, and (2) the pilot's response to her complaint was not discrimination under the City law, hence no discrimination claim. 

1. The airline is not liable for the passenger's racist remark because plaintiff has not alleged that the airline's negligence permitted or facilitated the passenger's conduct. She does not allege that Delta did not monitor the workplace, failed to respond to complaints, or discouraged employees from complaining about incidents like this. And Gilmartin had plaintiff fill out the FACTS report two days after the incident. As for the pilot's response to plaintiff's complaint, she said the situation was "resolved" and she told OCC she was "ok." 

2. What about the retaliation claim? Plaintiff can sue for retaliation if she complained about employment discrimination in good faith. That forgiving standard does not help plaintiff because the passenger's comment was not an employment practice, and her own account, as reflected in the FACTS report, shows it was not unreasonable for Delta not to take further remedial action, as plaintiff said the situation was resolved and she was OK. 

Judge Bianco dissents on the retaliation holding, stating that the FACTS report, which informs much of the majority's reasoning, is not properly before the court as plaintiff did not quote or reply upon it in her complaint. Nor does the FACTS report doom the claim, Judge Bianco says, because it says the pilot ordered plaintiff to resolve the dispute with the racist passenger, and she was fired shortly thereafter. "In short, the complaint alleges Leroy was terminated after complaining of an unlawful employment practice by Delta in response to a racial epithet by a passenger, and the FACTS report (even if it could be properly considered on a motion to dismiss) in no way renders these allegations of retaliation implausible."

The summary order that the Court of Appeals issued in this case on October 21 reads like a different case than the published opinion that the Court issued in June, as the Court rules against plaintiff on different grounds than it did the first time around. Second Circuit junkies will wonder why the Court did not issue the October 21 ruling in June, or why the case now appears as a summary order. This is also the first Second Circuit summary order I've seen that has a dissenting opinion. Usually, dissents justify making the ruling presidential. Finally, while the summary order in this case does not expressly state that the published ruling in June 2022 is vacated, the docket sheet contains such a notation.

Hostile work environment claim fails as plaintiff cannot show it was racially-motivated

The plaintiff in this case alleges that he endured a hostile work environment on account of his race. The Court of Appeals finds the work environment may have been unpleasant, but that it was not because of race. This case is important because it involves a fact pattern that arises from time to time: a plaintiff is treated badly and claims it happened because of race, gender, or age. But the courts want you to produce evidence of these discriminatory motivations that many plaintiffs are unable to deliver.

The case is Tassy v. Buttigieg, issued on October 20. When the plaintiff began working for the Federal Aviation Administration in Farmingdale, Long Island, a Black manager (Anderson) told plaintiff (who is also Black) that he needed to "be careful," pointing to plaintiff's black skin.The manager was referring to a White employee who worked at the front desk. Over the course of his employment, plaintiff was then denied certain on-the-job training, though one trainer who worked with plaintiff was particularly rough on plaintiff, though the trainer was known to be difficult "with all people." Another trainer embarrassed plaintiff by repeatedly and loudly stating that plaintiff had failed an exercise. Another trainer mostly ignored plaintiff but did not make any racial comments. On top of all this, plaintiff says, several employees never greeted him when he came to work, one inspector was rude to plaintiff and falsely reported that plaintiff had used profanity in the office, and a co-worker made a gesture suggesting he thought plaintiff smelled bad. Someone else said that Haitian artwork that plaintiff had posted in the workplace was "a piece of crap."

Is this enough to prove a hostile work environment because of race? Under Title VII, you have to show the harassment was motivated by race and that it was severe or pervasive. The Circuit recognizes that some race-neutral conduct may support a racially-hostile work environment claim if these incidents were part of a pattern of racial harassment. Plaintiff concedes that none of the incidents in this case were overtly racist. The evidence that he does put forward is not enough to support a racial harassment claim. Yes, plaintiff was treated badly. But there was nothing inherently racial about these incidents. I suppose you can argue that these were all micro-aggressions and that the bias was implied, but the courts have not yet adopted that theory under Title VII, to my knowledge.

Here is how the Court of Appeals (Livingston, Pooler and Sack) analyzes the case:

But this evidence is insufficient to create a genuine dispute that the alleged failures to train and the non-overtly-racist office incidents—the alleged failure of co-workers to say “good morning,” for instance, or one office worker’s expression of distaste for Tassy’s artwork—were motivated by hostility to Tassy’s race, color, or national origin, as opposed to any other reason. While Anderson’s earlier comment and gesture to Tassy perhaps suggests that racism was prevalent at the Farmingdale FSDO, the conversation predated Tassy’s employment there and did not refer to any particular person or behavior that Tassy subsequently complained about.  Anderson’s warning about a particular white employee is also insufficient since Tassy does not claim that this employee ultimately harassed him at the Farmingdale FSDO.  And, like Anderson’s comment, Soto’s alleged remark about general “racial issues” in the office, while probative, is insufficient to demonstrate that the particular treatment that Tassy faced was based upon his protected characteristics.  Finally, Anderson’s later suggestion that Tassy’s co-workers might be avoiding Tassy over fears of him filing an EEO complaint against them was mere speculation and cannot support the inference that the employees were actually mistreating Tassy on account of his race.

 

 

 

Interesting records access case is mooted on appeal

This case involves two federal statutes that address public access to records dealing with developmentally-disabled prisoners in New York. An advocacy group wanted certain documents relevant to inmates, launching a battle that wound up in federal district court and then the Court of Appeals. But the advocacy group was successful in receiving the documents, and the appeal is therefore moot.

The case is Disability Rights New York v. New York State Department of Corrections and Community Supervision, a summary order issued on October 18. The two statutes are the Developmental Disabilities Assistance and Bill of Rights Act of 2000 and the Protection and Advocacy for Individuals with Mental Illness Act of 1986. Both laws are found in Title 42 of the U.S. Code. The plaintiff group wanted records for two individuals incarcerated in DOCCS facilities. The district court denied the organization's motion to acquire the documents for inmate A but granted the application for inmate B. The organization appealed as to the ruling on inmate B.

But the state turned over the documents for inmate B while the appeal was pending. This is a potentially interesting and important issue, as the Court of Appeals rarely interprets these statutes. But the Constitution only allows the federal courts to decide "cases and controversies," which means there must be a real and concrete dispute between the parties. The federal courts cannot issue advisory rulings. 

The mootness as the inmate B is clear: the state has turned over the records. But the plaintiff-organization argues that the issue as to inmate A is not moot because, it says, DOCCS has not abandoned its legal position and will continue to deny records in the future based on the district court's erroneous interpretation of federal law. That allows plaintiff to argue that its legal issue is "capable of repetition, yet evading review," an exception to the mootness principle. The Court of Appeals (Chin, Carney and Bianco) rejects that argument, finding "there is no longer any effectual relief whatever that this Court can grant DRNY." The Court notes in a footnote that the parties are litigating similar issues in the district court and can challenge portions of the district court's analysis that bears upon ongoing or future disputes regarding the scope of these federal statutes.

Circuit clarifies transportation exception to Federal Arbitration Act

The Second Circuit first issued a ruling in this case in May 2022, holding that the plaintiffs were not able to invoke the transportation exception to the Federal Arbitration Act in their overtime claim under the Fair Labor Standards Act. The Supreme Court a few weeks later issued a ruling in a different transportation exception case, which prompted the plaintiffs' lawyer in this case to petition the Second Circuit to reconsider the case. The Second Circuit reconsiders the case, but the plaintiffs still lose.

The Federal Arbitration Act says that courts must honor arbitration clauses, including those governing employment relationships. So the arbitration clause that an employee signs with management on her first day of employment means she cannot sue the company in court for discrimination or other claims. One exception to that is the "transportation industry" exception. We have few cases that interpret that exception. This is one of them.

The case Bissonette v. LePage Bakeries Park St., LLC, issued on September 26. Plaintiffs deliver baked goods to stores and restaurants by truck. They claim the defendant denied them overtime pay and other wage and hour violations in violation of the Fair Labor Standards Act and Connecticut law. They want to sue in federal court, however, and not submit to arbitration. The common wisdom is that court is a more favorable forum for plaintiffs than arbitration. Management wants the case sent to arbitration. Plaintiffs claim the transportation industry exception allows them to sue in court. The district court granted defendants' motion to compel arbitration, and the Court of Appeals affirms in a divided vote.

While the FAA says transportation workers are not required to arbitrate, the Supreme Court has never defined what that phrase means. Under the FAA, employment contracts are not subject to arbitration involving "seamen, railroad employees and any other class of workers engaged in foreign or interstate commerce." The class of workers encompassed by the residual clause is "transportation workers." As the Second Circuit sees it, the two examples in the FAA, seamen and railroad employees "locate the 'transportation worker' in the context of a transportation industry." In Erving v. Virginia Squires Basketball, 468 F.2d 1064 (2d Cir. 1972), the Second Circuit said the FAA exclusion is limited to workers involved in the transportation industry. That is still good law, the Court of Appeals says. 

The holding: "an individual works in a transportation industry if the industry in which the individual works pegs its charges to the movement of goods or passengers, and the industry's predominant source of commercial revenue is generated by that movement." Under this interpretation, plaintiffs are in the baking industry, not the transportation industry or the trucking industry. While they drive the baked goods to stores and restaurants, these places are paying for the baked goods, not the transportation that brought the baked goods to these locations. 

 

After the Second Circuit issued its initial holding in May 2022, the Supreme Court issued Southwest Airlines v. Saxon, 142 S. Ct. 1783 (2022), which held that not everyone who works in the transportation industry can invoke the transportation exception, as the courts must consider "the actual work that the members of the class, as a whole, typically carry out," which means in other words, "what the worker 'frequently' does for the employer." The plaintiff in Saxon was able to invoke the transportation exception under the FAA. But not everyone who works for the airlines can invoke the exception, and the holding in Saxon is not so far-reaching that it can change the result in Bissonette, the Second Circuit holds, because "those who work in the bakery industry are not transportation workers, even those who drive a truck from which they sell and deliver the breads and cakes." This means the original decision in Bissonette stands, and the plaintiffs must go to arbitration, not court.

Another Garcetti free speech case is dismissed

In this First Amendment case brought against the County of Rockland, a former police officer who taught courses at the County Police Academy claimed he was terminated from his position after he blew the whistle on the Academy's director, claiming the director violated state requirements by using uncertified instructors, submitting inaccurate course materials to the state agency (DCJS) that supervises courses like this, and omitting state-mandated content from courses. He loses the case.

The case is Brook v. County of Rockland, a summary order issued on October 11. Everyone loves a good whistleblower, and whistleblowing can be a form of First Amendment speech. But public employees and those who contract with public agencies have limited rights. If they speak pursuant to their job duties, there is no speech claim, as the courts regard that speech as work speech and not citizen speech. That's the Garcetti rule, named after a 2006 Supreme Court case that scaled back these claims; prior to Garcetti, all the plaintiff had to show was that he spoke on a matter of public concern and got the axe for it. 

Plaintiff loses, the Court of Appeals (Lee, Bianco and Jacobs) says, because his various complaints were "part and parcel" of his concerns about his ability to perform his work as an instructor. The part-and-parcel language derives from a Second Circuit ruling, Weintraub v. Board of Education (2010), which in my view broadened the Garcetti rule. Weintraub kills plaintiff's case. Here is how the Court sees it:

Plaintiffs argue that, because Brooke’s complaints concerned [director] Heubeck’s violations in connection with courses that were outside of the Basic School program, Brooke did not speak pursuant to his official duties as the Basic School Coordinator. However, as part of his duties, Brooke sought the DCJS approval of at least one other course outside of the Basic School program. Additionally, as the Basic School Coordinator, Brooke was required to instruct in “all academy programs as assigned by [Heubeck],” not only in the Basic School courses. For example, Brooke previously taught the Defense Tactic Instructor course, which was one of the subjects of his complaints, and learned about the inaccuracies in Heubeck’s DCJS submissions for the course after Heubeck asked him to serve as an instructor and put Brooke’s name on the curriculum. Therefore, when Brooke reported that the Defensive Tactics Instructor course did not meet the DCJS requirements, he was again raising concerns about his ability to execute his official duties as an instructor and comply with the state-mandated course requirements as the Basic School Coordinator.

From this angle, plaintiff spoke pursuant to his job duties. Yes, he was simply an instructor. But Garcetti advances a broad rule, and Weintraub broadens even that rule. Under this framework, there is not much a public employee can say that will be protected under the First Amendment, at least in my experience. Since 2010, the Court of Appeals has sustained only a few cases involving public employee First Amendment retaliation. Plaintiff may have been righteous, and perhaps his claim would have prevailed under Article 78 in state court (which does not require the plaintiff to navigate Garcetti and Weintraub), but the First Amendment will not provide any relief.

Classic rock streaming case reaches the Second Circuit

Sometimes rock and roll winds up in the courts, as even rock and roll is a business and someone owns the music and will sue if they think someone else is using the music without permission. This case arose when someone got ahold of a gold mine of concert recordings from the classic rock era and made it available on the Internet. One thing led to another, and the archives that were broadcasting the music online got sued. The music publishers won the lawsuit, but the case is not over.

The case is ABKCO Music, Inc. v. Sagan, issued on October 6. ABKCO and the other music publishers said there was no valid license to make the music available online, through websites like Wolfgang's Vault, which specializes in classic rock memorabilia and was streaming this music for the world. That music included stuff by the Grateful Dead, The Who, The Rolling Stones, and others. Without a valid license to stream this music, you have a copyright violation. The case went to trial and the jury awarded the publishers $189,500 in damages, a "minimal" amount, plus $2.4 million in attorneys' fees. The plaintiffs sought $30 million in damages.

On appeal, the Court of Appeals (Jacobs, Wesley and Menashi) splits the baby and upholds some of the district court's rulings and vacates a few others, sending the case back to the district court for additional work. It's all very complicated, but the Court says that some of the materials are not covered under the Copyright Act because they were audiovisual recordings and not "phonorecords." As for the audio-only recordings, they are protected under the Copyright Act. The case returns to the district court for fact-finding on other issues.

Meanwhile, part of this case went to trial before Judge Ramos, which produced the jury verdict. The publishers want a new trial, claiming the district court made bad evidentiary rulings and other errors. The evidentiary challenges fail on appeal, as the trial court has broad discretion to resolve those issues at trial. The most interesting trial issue is the claim that the jury rushed its verdict because the COVID-19 pandemic was upon us in early March 2020 and the jury got nervous they were going to be infected. The trial court told the lawyers to hurry up and finish because "the world is falling apart around us," and that the National Guard might be surrounding them before we know it. The jury sent a worrisome note about the pandemic and said they did not want to die or lose any family members over a damages trial. The trial court ruled these jury concerns did not justify excluding the jury from deliberations, and counsel did not object. 

The publishers think the jury may have rushed its verdict, wrapping things up in less than an hour without reviewing any exhibits. While it awarded minimal damages, it did find that some of the copyright violations were willful, so the jury was able to pick apart the case in its limited deliberations period. The appellate court says no new trial is warranted because the trial judge told the jury it could deliberate as long as it wanted, distinguishing this case from a 1980 Fifth Circuit case were the jury returned a verdict in 45 minutes after the trial court told them to render a verdict in 15 minutes, as a hurricane was about to make landfall. Also, the jury who wrote that note said he and the other jurors wanted to render a fair verdict.