Some guidance on management's duty to protect workers from third-party sexual harassment

In this unusual sexual harassment case, the plaintiff -- a Town Planner and Director of Development Services for the Town of Berlin, Connecticut -- complained that a Town resident (a local developer) was sending the Town a series of letters claiming that plaintiff had a substance abuse problem and she was involved in a sex scandal with a subordinate. Plaintiff ended up resigning over this. The district court said the Town's response to these offensive letters satisfied its obligations under Title VII. The Court of Appeals agrees with plaintiff that a jury may rule in her favor.

The case is Riggins v. Town of Berlin, a summary order issued on June 13. The letter-sender, Coccomo, did not work for the Town. But the Town still had an obligation to protect plaintiff. The Court of Appeals notes that Coccomo's letters "were replete with aggressive, lewd, demeaning, and sexually discriminatory language." In a footnote, the Court states it will not repeat that language verbatim "to avoid further victimizing Riggins through continued dissemination of [Coccomo's] vile attacks." The Town consulted with the police about these letters, determining the letters did not violate any criminal laws, but ultimately the Town decided it could not take any further action against Coccomo. Plaintiff ultimately resigned her position.

The Second Circuit (Leval, Merriam and Khan) notes the standard guiding an employer's duty to protect its staff from outside harassers.Citing Summa v. Hofstra Univ., 708 F.3d 115 (2d Cir. 2013), for this proposition, the Court says, "we look to whether the Town’s 'response was immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility' the Town had over Coccomo’s behavior."

Plaintiff can win the case because (1) while the Town brought Riggins' complaints to the police, those efforts focused on whether Coccomo could be criminally prosecuted, and not how to prevent further sexual harassment; (2) the Town otherwise took no steps that might dissuade Coccomo from further sexually harassing communications, (3) the Town did not undertake a Title VII investigation until after Riggins resigned; (4) no Town official told Coccomo that his communications constituted inappropriate sexual harassment and that he must stop; (5) the Town did not consult with an employment attorney on this matter until Riggins submitted her resignation letter, which meant she had to deal with this harassment for more than four years. 

While the Town argued that it had limited control over Coccomo, the Court of Appeals says the jury may find otherwise. "The Town did have exclusive control over its workplace and over the email system to which Coccomo sent many of the harassing communications. And the Town presumably could dictate the way in which Coccomo was permitted to communicate with Town employees." The Court of Appeals cites Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001), which states, "The focus is not on the conduct itself but on the employer’s behavior in response; a hospital cannot control every act of its patients, but it does control the environment at large.” Therefore, the Court says, "the Town’s degree of control over Coccomo’s actions is not dispositive of whether the Town’s remedial actions were sufficient and appropriate." And, other than calling the police, it appears the Town did nothing to dissuade Coccomo to stop his abusive behavior.

What does "excusable neglect" mean under the Federal Rules?

I know that you know this, but it always bears repeating: deadlines are important. Miss and deadline and the case could go way for good. That is what happened here.

The case is Doe v. Board of Education of N. Colonie Central Sch. Dist., a summary order issued on June 17. This is a First and Fourteenth Amendment case with a few state law claims. After the district court dismissed plaintiffs' lawsuit without prejudice, citing their failure to meet pleading requirements, plaintiffs were given a deadline amend the complaint and make it right. This is common in federal practice: trial judges usually give the plaintiff at least one chance to amend a deficient complaint on the theory that cases should be resolved on the merits and not based on attorney error or procedural irregularities.

The dismissal order said plaintiffs had until April 27, 2023 to amend the complaint. But that date came and went without an amended complaint, and the district court dismissed the case altogether. A few weeks later, plaintiff filed a motion under Rule 60 to vacate the judgment of dismissal based on excusable neglect. The district court denied that motion, which brings the case to the Court of Appeals.

The Second Circuit (Lohier, Sack and Kahn) finds that the district court did not abuse its discretion in denying the Rule 60 motion. That means the case is over. To get around a dismissal like this, the plaintiff has to prove "excusable neglect." The main factor in determining "excusable neglect" is "the reason for the delay, including whether it was within the reasonable control of the movant." 

The concept of "excusable neglect" sounds forgiving, but that is not always the case. Plaintiffs' lawyer said there was excusable neglect because "the docket notifications containing the April 6 order were emailed to their counsel’s spam folder, rather than his inbox." The district court said this excuse was "highly questionable” as "the Plaintiffs have never plausibly explained why only the April 6 notifications were sent to counsel’s spam folder, while all other notifications were sent to his inbox." 

It is pretty scary to think that a court-related directive might find its way into your spam box. I just checked my own spam box to see if there is anything important there. In any event, that was not the only reason the Rule 60 motion was denied. The Court of Appeals says that counsel also admitted that "a part-time employee at counsel’s firm did receive the April 6 notifications in the employee’s inbox. In addition, the District Court noted that counsel had failed to comply with prior deadlines because he had been unaware of docket notifications.  Counsel also implied that he had not otherwise been monitoring the docket for over two months because he was under the impression [he was] waiting for a Decision from the Court.”  

What we learn from this is that counsel's failure to pay attention to the docket is not excusable neglect. That phrase refers to circumstances beyond plaintiff's control.

Blanket policies at hospital for new mothers may violate Americans with Disabilities Act

This is a unique case. Plaintiff alleges she went to the hospital and they violated the Americans with Disabilities Act and Rehabilitation Act when they stereotyped her on the basis of her substance abuse disorder. The Court of Appeals has to determine whether this is a true disability discrimination case or a medical malpractice case which would have to be litigated in state court under a different set of legal standards. The Court clarifies the law in this area.

The case is Costin v. Glens Falls Hospital, issued on June 12. Plaintiff went to the hospital to have a baby. Plaintiff told the hospital that she was taking Subutex, as prescribed by her doctor, for substance abuse disorder, but that she was no longer abusing any illicit opioids. The nurse told plaintiff that the hospital drug tests all pregnant women who take medication like this and the hospital also had a policy of reporting all new mothers using Subutex to Child Protective Services for potential child abuse. The hospital also denied plaintiff an epidural, accelerated her labor, failed to discharge the baby right away, prevented skin-to-skin contact between mother and baby, and did not explain treatment alternatives.

How do we sort all of this out? Courts hold that many civil rights case are actually medical malpractice cases. The leading case on this issue is McGugan v. Aldana-Bernier, 752 F.3d 224 (2d Cir. 2014), which holds that medical treatment can violate the ADA when decisions are "pejorative," meaning decisions are made based on irrelevant criteria and/or irrational bias. 

Plaintiff's substance abuse disorder qualifies as a disability under the ADA and the Rehabilitation Act. Under McGugan, the blanket policies against new mothers, relating to reporting them to CPS and mandatory drug tests, may violate the ADA. The problem for the hospital is that these may be blanket policies that apply to all mothers in plaintiff's situation. That may give rise to an ADA violation.The other matters about which plaintiff complained, including the epidural denial, are really medical malpractice claims, the Court of Appeals (Jacobs, Lohier, and Livingston) holds. 

As a side note, the Court holds plaintiff has standing to bring this case. Plaintiff attested that she plans to return to the hospital in the future, and that is enough. The Court also notes in a footnote the "happy news" that plaintiff is pregnant again, which further proves she will return to the hospital in the future.

Court of Appeals allows jury to hear threats against postal employees

The Court of Appeals has issued an good old-fashioned evidentiary ruling that applies the settled rules guiding relevance and admissibility. It arises in a criminal case where the defendant was accused of making threats relating to his employment with the Post Office.

The case is United States v. Garnes, issued on May 28. After the defendant was fired, he spoke to the Department of Labor about his unemployment benefits. Those conversations led to an indictment alleging defendant had threatened to injure another person. During the call, the Government alleged, defendant threatened to assault and murder two Post Office employees after he was told he did not qualify for unemployment benefits. 

What did defendant say: the Government claims he said, "If I go back to the post office, I'm gonna shoot somebody," and other similar comments. Prior to trial, defendant's attorney successfully moved to exclude certain other statements that mentioned his prior time in prison and that it would not bother him to be in jail. Defendant argued these were not threatening statements but, instead, "poorly phrased attempts . . . to characterize the absurdity of his predicament; one where it is preferable, from an economic standpoint, to be incarcerated than to live as a free man." The trial court excluded these statements as more prejudicial than probative.

The Court of Appeals (Lynch, Nardini and Kahn) reverses the trial court and says the jury can hear the jail comments, which are relevant to the charge that he threatened to assault or murder postal employees. Here is the reasoning:

the five statements made by Garnes that repeatedly refer to, and indeed overstate, his criminal history, at a minimum have a “tendency” to make it more probable that the threatening language would convey to listeners that they had something to fear, and that Garnes made those statements with an awareness, and even with the intention, that he would create such fear. See Fed. R. Evid. 401. A jury could find that Garnes’s statements about his history of criminal acts, his past experiences in jail and prison, and his comfort with returning to jail would convey to a reasonable listener a sense that Garnes was willing and able to act on his violent words, and that he made those statements in a conscious attempt to make his threats to shoot and kill employees of  the DOL and USPS more credible.

While the defendant claims the statement create the potential for unfair prejudice, the Court of Appeals disagrees. The Court notes that the statements "may create some potential for unfair prejudice," but "the five statements are part of the 'res gestae,' the narrative the government rightly seeks to tell at the guilt phase of the trial." Defendant's exaggerated statements about his criminal record are a part of that: the jury may find the stretched the truth about his jail time in order to make his threats more credible.

Reverse gender discrimination case under Title VII is dismissed

This plaintiff alleges he was fired from his position on the basis of his gender. The case is dismissed because the record shows he was really fired for setting up a fake bank account in his brother's name. Plaintiff tries to argue he was singled out for disparate treatment, but the Court of Appeals finds his "comparators" are not really comparators.

The case is Carter v. TD Bank, NA, a summary order issued on June 4. It all started when plaintiff's brother visited a TD Bank branch in Florida and told the staff that several accounts had been opened in his name without his knowledge or authorization. An investigation followed. The bank determined that plaintiff had opened up the accounts as a scam. The investigator determined that plaintiff's defense was not plausible - plaintiff said his brother must have forgotten that he had opened the accounts only five days earlier. The investigator also thought that plaintiff had forged his brother's name on the new account documents. 

If setting up a false bank account is not grounds for termination, then I don't know what is. But plaintiff said the real reason was gender discrimination because two women were not fired despite engaging in fraudulent activity. One comparator was negligent in failing to detect fraudulent paperwork submitted by a customer. The other woman was found to have committed an act of dishonesty that, according to plaintiff, should have resulted in his termination. 

Are these legitimate comparators? The Court of Appeals' leading case on this issue is Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000), which says the comparators must be "similarly situated," or subject to the same workplace standards as the plaintiff. The comparators must also have engaged in comparable conduct.

Not this case, the Court of Appeals (Jacobs, Sack and Sullivan) holds. The first comparator was only negligent in her misconduct. She did not engage in intentional fraud. The other comparator was not subject to the same workplaces standards as plaintiff. The Court finds that no reasonable jury could find these two women were comparable to plaintiff. Without additional evidence of gender discrimination, the case is dismissed. 

COVID vaccine-related disability discrimination claim fails

We have another COVID-19 vaccination case in the Second Circuit, this one alleging that a medical contractor fired the plaintiff in violation of the Americans with Disabilities Act after he refused to take the vaccine. Plaintiff argued that his employer regarded him as disabled and then retaliated against him after he objected to the vaccine mandate. Plaintiff loses the case.

The case is Sharikov v. Philips Medical Systems MR, Inc., issued on June 4. Plaintiff worked in defendant's Latham, N.Y., office. After defendant began implementing COVID-19 health measures, including masking, glove-wearing, screening, etc., it told its employees that it had to comply with a federal vaccine mandate for federal contractors like Philips Medical Systems. Employees were told they would have to resign if they did not comply with the mandate. Eventually, the federal mandate was put on hold due to court rulings, but defendant continued to adhere to local vaccine mandates. Plaintiff objected to the mandate and claimed he was being discriminated against. In December 2021, plaintiff field an EEOC charge and also sent a missive to defendant's global ethics complaint system, claiming that defendant was

regarding me as having a disability (an impaired immune system and an impaired respiratory system) without any diagnosis or individualized assessment and has also made a record of such disability by misclassifying me as having, in ADA terms, a mental or physical impairment that substantially limits one or more major life activities. My employer is also coercing me to submit to medical examinations and interventions as accommodations ("mitigation measures") without any informed consent.

Plaintiff was eventually fired and his departure was classified a voluntary resignation. 

The Court of Appeals (Livingston, Kearse and Chin) holds that plaintiff's discrimination claim fails for the following reason:

1. Plaintiff's "regarded as" disabled claim under the ADA is dismissed because defendant's vaccine mandate applied to all employees, not just plaintiff, and the company imposed the mandate pursuant to federal rules and also to protect employees and customers from infection. The Second Circuit holds that a plaintiff is not "regarded as" disabled when he is terminated for not complying with an office-wide vaccination mandate. Put another way, the company did not regard plaintiff as disabled because he was not singled out for the mandate on the basis of any perceived disability. "Sharikov does not explain how adopting measures to prevent the spread of a communicable disease implies an impairment, and he cites no case law equating prophylactic measures with assumptions of disability. Moreover, taken to its logical conclusion, Sharikov's position would subject many companywide safety policies to potential challenge under the ADA on the theory that such policies perceived all employees as disabled."

2. Nor is there a retaliation claim. Yes, plaintiff objected to the vaccine mandate and filed an EEOC charge, which is protected activity. But no, he cannot show, even under Rule 12 motion to dismiss standards, that he would not have been fired had he not lodged these objections. "The allegations of the Complaint instead make clear that Sharikov was discharged because he refused to comply with the company-wide policies first announced in October 2021, when all employees were told they had to be vaccinated or approved for an exemption by February 4, 2022 or be deemed to have resigned." The Complaint instead confirms that plaintiff was fired because he would not comply with a company-wide policy that applied to all employees.

NRA wins free speech case against State of New York

After the country endured another mass shooting -- this one in Parkland, Florida, which killed 17 students and staff members -- the Superintendent of the New York Department of Financial Services -- which regulates insurance companies and financial services companies -- sent a letter to organizations that administered insurance policies to National Rifle Association members. That letter and related comments form the basis for this First Amendment lawsuit that the NRA filed against the State of New York. The Supreme Court says the NRA has a case.

The case is NRA v. Vullo, issued on May 30. Vullo was the Superintendent. The letter mentioned the social backlash that the NRA was facing in the aftermath of the Parkland shootings and that businesses were severing their ties to the NRA as a result. In the "Guidance Letters," Vullo urged the DFS-regulated entities to evaluate and manage their risks, including reputational risks, from their relationship with the NRA, and to review any relationships they have with the NRA or similar gun-rights organizations. Three such entities, including Lloyd's, shortly thereafter entered into consent decrees with the State over allegations that they had violated regulations in providing insurance coverage for intentional acts, among other things. Vullo and Governor Cuomo then issued a press release urging insurance companies and banks in New York to discontinue their relationships with the NRA. 

The Supreme Court rarely takes up a case like this, alleging that governmental directives or guidance letters might violate the free speech rights of a private organization. In 1963, the Court held in Bantam Books v. Sullivan, that the government cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. The NRA case provides another opportunity to develop this area of the law. 

The general rule is that, to state a claim, the private organization must assert that, in context, the message would be reasonably understood to convey a threat of adverse government action in order to punish or suppress free speech. That the NRA was not the recipient of Vullo's guidance letters is of no moment in this analysis. The Court holds that the NRA states a free speech claim because (1) Vullo has regulatory authority over the insurances companies that did business with the NRA, and (2) Vullo had investigated Lloyd's over insurance-related violations and (3) told insurance executives that DFS had been investigating insurance companies and "was less interested in pursuing those infractions unrelated to any NRA business so long as Lloyd's ceased providing insurance to gun groups, especially the NRA." Vullo also told these entities that she would focus her enforcement actions solely on the organizations with ties to the NRA and ignore other syndicates writing similar policies. This was a thinly-veiled threat, the Supreme Court unanimously holds, and the NRA was the target. 

Writing for the Court, Justice Sotomayor reverses the Second Circuit (where she sat prior to her nomination to the Supreme Court). Here is the heart of the analysis:

As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the “threat need not be explicit,” and as the Solicitor General explains, “[t]he Constitution does not distinguish between ‘comply or I’ll prosecute’ and ‘comply and I’ll look the other way,’” So, whether analyzed as a threat or as an inducement, the conclusion is the same: Vullo allegedly coerced Lloyd’s by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd’s ceased underwriting NRA policies and disassociated from gun-promotion groups.