First Department narrows who may be personally sued under the NYC Human Rights Law

If you handle discrimination cases in New York City, you know the New York City Human Rights Law provides for greater protections than the federal civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. The state courts periodically issue rulings that adhere to that statutory interpretation. This case is not one of them.

The case is Doe v. Bloomberg, L.P., issued by the First Department on September 24. The plaintiff claims she was sexually harassed by Nicholas Ferris while employed by the company formed by former NYC Mayor Michael Bloomberg. She is suing him personally, in part, on the basis that Bloomberg created a culture of sexual harassment at his company. The First Department notes that, while the statute imposes strict liability on "employers," the law "does not provide a definition of 'employer' and the legislature has not provided guidance as to how 'employer' should be defined under the statute." Here are the basis rules governing employer defendants:

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors.  Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. 

Looking at this issue anew, the First Department holds in a 3-2 vote that "in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim." In other words, the corporate officer must have some personal involvement in the discriminatory violation. It is not enough that he is a corporate officer.

The First Department provides this explanation:

holding an individual owner or officer of a corporate employer liable under the City HRL as an employer, without even an allegation that the individual participated, in some way, in the specific conduct that gave rise to the claim, would have the effect of imposing strict liability on every individual owner or high-ranking executive of any business in New York City. The City HRL is not so broad that it imposes strict liability on an individual for simply holding an ownership stake or a leadership position in a liable corporate employer.

Michael Bloomberg cannot be sued in this case under this new interpretation. The First Department says the complaint "fails to allege any facts from which it can be inferred that Mr. Bloomberg was aware or should have been aware of the discriminatory conduct committed by Mr. Ferris. Plaintiff never complained to Bloomberg L.P.'s HR Department about Mr. Ferris's conduct and there are no allegations in the complaint that Mr. Bloomberg knew or should have known about Mr. Ferris's conduct toward plaintiff, that Mr. Bloomberg knew or should have known that Mr. Ferris behaved in a discriminatory manner toward women other than the plaintiff or that Mr. Bloomberg had any involvement or interactions with Mr. Ferris at any point."

Since this case was decided 3-2, it looks like this dispute will reach the New York Court of Appeals, which has authority to hear divided cases like this. 

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim.

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim.

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

he Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

he Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

Case implicating one-person-one-vote in prison context survives appellate review

The Court of Appeals has ruled that the NAACP may proceed with a lawsuit against the State of Connecticut in claiming that the state violates the one-man-one-vote principle in counting incarcerated individuals as residing in the district where their prison is located rather than the district on which they presently reside.

The case is NAACP v. Merrill, issued on September 24. While most incarcerated prisoners cannot vote, their are still included in population counts. I mean, they still exist as human beings. The question is what legislative district do they belong to when they are in jail, often situated away from their home counties. What it all means, according to plaintiffs, is that counting the inmates as residents of their prison counties "artificially inflates the representation of some parts of the state at the expense of others: the representational power of the predominantly White residents living in the prisonersʹ mostly rural prison districts is artificially inflated, while the representational power of the predominantly Black and Latino residents living in prisonersʹ more urban home districts is artificially deflated."

The state argues there is no case under the Eleventh Amendment's general prohibition against suing the state in federal court. (As an aside, the Eleventh Amendment is really something that needs to be reexamined, as I don't know what purpose it serves to prevent people from suing the state in federal court, and whatever reasons may have existed for that policy back in 1787 probably don't apply in the modern age.) There are exceptions to the Eleventh Amendment, including the principle that you can challenge in federal court the state's ongoing violation of federal law and seek prospective, or injunctive, relief, and not money damages. That's the case here, as plaintiffs want a declaratory judgment and an injunction requiring the state to adopt a new districting plan for elections.

If you are a one-person-one-vote junkie, then this case is for you. The Court of Appeals (Wesley, Chin and Bianco) deals with the state's various defenses to this case, requiring the judges to explore f this constitutional principle. One issue involves what constitutes "one-person-one-vote." The Supreme Court has said states may deviate from that principle in pursuit of other legitimate objectives, and that "minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment." The general rule is that "a maximum population deviation under 10 percent falls within this category of minor deviations." The state argues that plaintiff has no case because the deviation falls within the 10 percent margin, but the Court of Appeals rejects that defense on this Rule 12 motion, as "[a] prima facie case . . . is an evidentiary standard, not a pleading requirementʺ and ʺit is not appropriate to require a plaintiff to plead facts establishing a prima facie caseʺ because ʺthe precise requirements of a prima facie case can vary depending on . . . context,ʺ and ʺit may be difficult to define the precise formulation of the required prima facie case in a particular caseʺ before ʺdiscovery has unearthed relevant facts and evidence." What it means is that "the 10% threshold is not a safe harbor."

Plaintiff wins associational discrimination claim in Second Circuit

The Court of Appeals has ruled that a man who was fired shortly asking his employer for time off to take care of his ailing daughter has stated a claim for associational discrimination under the Americans with Disabilities Act. This case represents the first time a plaintiff has prevailed in the Court of Appeals on this issue.

The case is Kelleher v. John A. Cook, Inc., issued on September 24. I represent the plaintiff and argued the appeal. Kelleher worked for a Kingston, N.Y., company as a laborer. His young daughter has Rett Syndrome, a serious illness that affects her ability to speak, walk and breathe. After plaintiff told management that his daughter's illness required him to rush home after work to aid in her care, his relationship with the company deteriorated, and at one point, when he asked to work eight-hour shifts for one week (instead of the 10-12 hour shifts), management said "his problems at home were not the company's problems," and he would not receive a raise. The next day, after plaintiff's daughter suffered a near-fatal seizure, plaintiff told defendant he could not work the following Monday. He arrived late to work on Tuesday and learned he had been demoted. A few weeks later, after management again denied plaintiff's request for eight-hour shifts, he was fired, purportedly for arriving to work 10-15 minutes late.

Plaintiff proceeds under the "associational discrimination" theory under the ADA. In 2016, the Court of Appeals outlined how plaintiffs can win these claims:

1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision. One scenario that may support an inference that the adverse employment decision was motivated by associational discrimination is “distraction”: the employer’s “fear[] that the employee will be inattentive at work due to the disability of the disabled person.”

That case was Graziadio v. Culinary Inst. of America, 817 F.3d 415 (2d Cir. 2016). Graziadio was the Second Circuit's first foray into this area. The legal standard it set forth was narrow, and to my knowledge no such claim has survived in the Second Circuit. The district court dismissed Kelleher's case, the Court of Appeals (Jacobs, Leval and Furman [D.J.]) brings it back. The employer argued that Kelleher was really challenging management's refusal to reasonably accommodate his schedule to take care of his daughter. After all, the ADA does not require employers to reasonably accommodate employees in connection with disabled family members. But that argument does not dispose of the case. The Second Circuit states, 

Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination. Thus, in this case, Cook’s demand that Kelleher “leave his personal problems at home” after Kelleher requested one week of shortened workdays supports Kelleher’s claim that his later termination was motivated by associational discrimination.

This evidence also permits the inference that management thought that plaintiff's daughter was a "distraction" under the associational discrimination theory.All the plaintiff needs in a Rule 12 motion to avoid dismissal is "at least minimal support for the proposition that the employer was motivated by discriminatory intent." As the complaint satisfies that requirement, Kelleher has a claim, and the case is reinstated.

Trump ordered to give deposition testimony in NYC campaign assault case

A state court judge in the Bronx has ordered that President Trump must sit for a videotaped deposition in a lawsuit that alleges he had authority over his employees who allegedly attacked protesters outside Trump Tower during the presidential campaign in September 2015. The case is heading for trial soon.

The case is Galicia v. Trump, issued on September 20. Trump's lawyers objected to the deposition, arguing that a sitting president cannot be required to give testimony under oath. In a prior court ruling in this case, the Court summarized the allegations as follows:

On September 3, 2015, plaintiffs assembled in front of the Manhattan office of Republican Party Presidential candidate Donald J. Trump located at 725 Fifth Avenue for the purpose of demonstrating their opposition to him as a political candidate. The high-rise building also houses commercial and residential property. Two plaintiffs were costumed in white hoods and robes, intending to call attention to the recent endorsement of Mr. Trump by David Duke, an individual associated with the Ku Klux Klan and recognized as a former KKK leader. Additionally, the plaintiffs brought with them three signs that they made which read in large letters “TRUMP MAKE AMERICA RACIST AGAIN” the word “RACIST” having displaced the word “GREAT”.

Plaintiffs positioned themselves and arranged their signs along a portion of the sidewalk opposite the entrance of the building. Security personnel approached the plaintiffs and admonished them to remove the signs. This was not the first demonstration by these plaintiffs in front of this property. This was also not the first time there were tensions between the building security and these demonstrators, however on this occasion the situation certainly became more intense. At some point, Keith Schiller (“Schiller”), Director of Security, physically attempted to remove two of the signs from where they were located tearing one in the process. In response, plaintiff Galicia attempted to wrest the sign back from Schiller whereby Schiller’s reaction was to repel Galicia ultimatelystriking him.

Rejecting Trump's arguments that he cannot be forced to give deposition testimony, Justice Gonzalez opens her analysis this way:

More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated "[t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Put more plainly, no government official, including the Executive, is above the law.

Plaintiffs claim that Trump "has had a substantial role in bringing about violence on the part of his security guards." In his affidavit in support of the deposition subpoena, plaintiffs' lawyer wrote:

Prior to the September 3, 2015 attack on plaintiffs, Donald Trump made the following statement during a press conference on August 11, 2015 wherein he advised that he intended to use violence against protestors in the future, personally or through agents:

"I would never give up my microphone. I thought that was disgusting. That showed such weakness. The way he was taken away by two young women, the microphone, they just took the whole place over and the audience, which like him -- I mean, they were him. They are saying what is going on? How can this happen? That will never happen with me. I don't know if I'll do the fighting myself or if other people will. But that was a disgrace. The way they -- I felt badly for him. But it showed that he’s weak."

On August 25, 2015, defendant Trump directed defendant Keith Schiller to forcibly remove Univision reporter Jorge Ramos from a press conference where Donald Trump was speaking. The physical removal of Mr. Ramos by defendant Schiller, which was captured on film by several news agencies, occurred directly in front of the podium where Donald Trump was speaking. Despite having witnessed his bodyguard of sixteen years1 remove Mr. Ramos, Trump denied even knowing Schiller’s identity when questioned by the press corps after the event by stating, “You’ll have to talk to security. Whoever security is escorted him out.”

Plaintiff's counsel also provides other examples of Trump's public statements suggesting that other protesters should be "roughed up" at his campaign rallies, telling Fox & Friends in November 2015 that "The man you say was roughed up, he was so obnoxious and so loud, he was screaming. I had 10,000 people in the room yesterday. 10,000 people. And this guy started screaming by himself. I don't know, rough up, he should have been -- maybe he should have been roughed up because it was
absolutely disgusting what he was doing." Counsel adds that "Donald Trump has publicly given specific directives to security personnel to use physical force and to engage in unlawful conversion of protestors’ property – the same conduct that is the subject of plaintiffs’ Amended Complaint." In January 2016, during a campaign speech in Vermont, Trump said, "Throw him out into the cold. You know. Don’t give them their coat. No coats. No coats. Confiscate their coats." You get the picture.

The Supreme Court held in Clinton v. Jones (1997) that Bill Clinton was not absolved from responsibility for unofficial conduct; that case alleged that Clinton exposed himself to Paula Jones before he became president. In Zervos v. Trump, 171 A.D.3d 110 (1st Dept. 2019), the Appellate Division has also held that State Supreme Court may exercise jurisdiction over the President (that case involved defamation). But this case raises a new issue: whether the President can be forced to provide sworn testimony for trial. Citing Zervos, Justice Gonzalez stated, "the First Department, which this Court must follow, recently contemplated both the President's involvement during discovery and a trial judge deeming the President's participation at trial necessary." While the plaintiffs in this case did not take Trump's deposition in discovery, they did not waive his trial testimony. "[T]here is no lawful basis to conclude that the President's testimony may only be taken during discovery." Here is the Court order:

"ORDERED, that defendant President Donald J. Trump shall appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial." 

Qualified immunity defeats two claims against school district defendants

The Court of Appeals finds that a teacher who was denied a position over a prior sexual misconduct finding cannot proceed with his lawsuit because he did not have a clearly-established right under the due process clause to seek "meaningful employment."

The case is Mudge v. Zugalla, issued on September 12. Mudge was a physical education teacher who was found in the late 2000s to have groomed two students for a sexual relationship after they were to have graduated. After plaintiff resigned his position, he then applied to work for a different school district, first as a school principal and, when that position fell through, as a substitute teacher. Plaintiff got the substitute teaching position, but the lawyer who prosecuted him for the prior misconduct found out about it, and he grew concerned that plaintiff did not have the moral character to work in the schools because he did not reveal the prior discipline in seeking this position. In fact, plaintiff was not required to report this discipline in applying for the substitute position. A school district investigator questioned why plaintiff was even hired in light of his background, but he became a permanent substitute at some point, but was denied the opportunity to extend that employment into the following year. Then the local newspaper ran a story about plaintiff's removal from the substitute teacher list.

Mudge sues the disciplinary-prosecutor and the district-investigator for due process violations, claiming they prevented him from pursuing his career and also subjecting him to "stigma plus" defamation, also a due process violation, arising from that newspaper article which has prevented plaintiff from finding another position. The timeline here sounds complicated, and it's that complication that gives the defendants qualified immunity. The Second Circuit therefore reverses the district court's contrary ruling, which denied the immunity defenses and ordered the case to trial. Under the appellate ruling, however, there will be no trial.

Qualified immunity is a defense to constitutional damages claims. The defendant is immune if the law was not sufficiently clear at the time of the violation such that she gets the benefit of the doubt when someone sues her for the rights violation. That's the situation here. If you handle Section 1983 claims, you know all about this immunity. Mudge is learning about immunity the hard way.

While lower courts have said that New York recognizes that a teaching licensee is entitled to meaningful employment, the Supreme Court and Second Circuit have never formally recognized that right. The law was therefore not clearly established when plaintiff got the shaft, so the defendants are off the hook on the theory that they could not have known they were violating his rights.

The stigma-plus claim is also gone. These cases allow you to sue a governmental official for defamation if it causes you to lose your job or it interferes with employment opportunities. I can tell you these cases are hard to win, as the legal standard is too high for most plaintiffs to satisfy. Like the due process claim, plaintiff's stigma-plus claim fails under the qualified immunity doctrine, as it was not clearly established at the time that a governmental defendant's "notice of the mere existence of an internal investigation into a license holder's behavior, without some detail as to the possible misconduct being investigated, could give rise to a stigma-plus claim." While the defendants in this case did publicize such an internal investigation, and while plaintiff claims that interfered with is employment prospects, the law was too fuzzy at the time for defendants to be on notice that they were breaking the law.

Court of Appeals issues pro-inmate ruling under the PLRA

Inmates have to file non-frivolous lawsuits or they will get into big trouble. Under the three-strikes-yer-out provision of the Prison Litigation Reform Act, a strike is "an action or appeal" that was dismissed as frivolous, malicious, or for failure to state a claim. With three strikes, you will not be allowed to file any subsequent lawsuits in formal pauperis, a Latin term that says the court will waive any filing fees for poor inmates. While the PLRA was enacted in the 1990s during the Bill Clinton/Newt Gingrich period, courts are still interpreting what the statute means.

The case is Escalara v. Samaritan Village, issued on September 12. Is a strike an actual lawsuit in its entirety, or individual claims? The distinction is important, as many lawsuits have multiple claims. What if someone files a lawsuit that has one frivolous claim but also a meritorious claim? Is that a strike? Most of the Circuit Courts that have taken up this issue have found that "dismissal of some but not all of the multiple claims in a complaint" cannot constitute a strike. The Second Circuit (Wesley, Chin and Bianco) agrees with that reasoning and finds that "mixed dismissals are not strikes under the  PLRA."

This reasoning is good for Escalara, because he had five cases, some of which had frivolous claims, such that only two of the cases are strikes. One dismissal was strictly on procedural grounds because he did not file a legible complaint, so that's not a strike. Another case was not a strike because, while the claims were dismissed, they were not found to be frivolous or malicious. A third case had some but not all claims dismissed; one claim was dismissed for lack of subject matter jurisdiction (not a frivolous strike) and the other was dismissed for failure to state a claim, which is a strike. One of plaintiff's other cases was a strike under the rules. A fifth case may or may not have been a strike since it involved a tricky area of law involving witness immunity, and the Court of Appeals leaves that issue alone since he can win this appeal even if that fifth case was in fact a strike. In the end, when you do the math, while plaintiff's cases were all dismissed for one reason or another, they were not all frivolous. Under the formulation adopted by the Second Circuit in counting strikes, Escalate is not a three-striker.

Inmate wins retaliation claim against his jailers

This inmates rights case finds the prisoner has a legitimate retaliation case against his jailers, whom he claims punished him for filing grievances over the conditions of confinement.

The case is Brandon v. Kinter, issued on September 10. I wrote about the plaintiff's big win on the religious freedom portion of this case at this link. But plaintiff also says the guards retaliated against him in violation of the First Amendment, which protects the right of inmates to grieve their living conditions. He says the defendants retaliated against him in three ways: (1) they took away his medical diet; (2) one of the guards served him a meal containing pork, prohibited under Muslim practices; and (3) the guards allowed another inmate to spit on him. The case got dismissed in the district court, but the Court of Appeals (Walker, Calabresi and Chin) reinstate the lawsuit. Brandon will have his day in court.

The legal standard for constitutional retaliation claims is whether the government's response to your speech activity would deter a person of ordinary firmness from complaining or speaking out again. This separates the trivial claims from the real claims, and recognizes that silencing critics prevents those critics from speaking out again. If the inmate can prove that, then he's got an "adverse action" worth suing over.

As for the removal of plaintiff's medical diet, the Court finds that the diet was intended to address his high cholesterol and heart problems. The medical diet ensured he would be served foods to which he was not  allergic. "Given the potential consequences for Brandon's health, the removal of his medical diet could reasonably be found to be an adverse action." We can also infer the removal of the medical diet was caused by plaintiff's speech, as it happened shortly after plaintiff filed most of his grievances, and  the guards made hostile comments to plaintiff about his grievances, further demonstrating a link between his grievances and the diet shenanigans.

The same analysis applies to plaintiff's claim that the jail gave him pork in retaliation for the grievances, which themselves involved the improper pork in his diet. One way plaintiff can win the case is through evidence that he got pork when other inmates at the same meal got no pork at all in a supposedly meatless meal. This is a close call, but it's going to the jury. Finally, the Court says plaintiff can prove the guards allowed another inmate to spit on plaintiff shortly after he filed his grievances. The guards knew the offending inmate (his name as Tiny) was aggressive and had attacked another inmate. The placed him in the cell with plaintiff. Not only does plaintiff show this happened after he filed grievances, but the guards made hostile statements: "If he grieves another tray, I'm going to lock his ass up!" said one in reference to plaintiff's complaints about the pork.