Friday, April 28, 2017

We review hostile work environment claims as a whole

The Court of Appeals has reinstated a racial and gender discrimination lawsuit, finding that management's use of the N-word and other epithets supports his claim, and that the sexual harassment may have exacerbated the racial harassment. The Second Circuit, however, declines to find as a matter of law that the N-word by itself creates a hostile work environment.

The case is Daniel v. T&M Protection Resources, a summary order decided on April 25. Plaintiff handled the appeal pro se, but the EEOC submitted and amicus brief on his behalf. The EEOC wanted the Second Circuit (Pooler, Wesley and Carney) to find that this racial epithet is enough to prevail in a racial harassment case. The Circuit said in Rivera v. Rochester Genessee Reg'l Transp. Auth., 743 F.3d 11 (2d Cir. 2014), that "perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet of the slur 'nigger' by a supervisor in the presence of his subordinates." But that language was dicta, the Second Circuit says, and therefore not binding on any court. Still, "although we decline to confront the issue of  whether the one-time use of the slur 'nigger' by a supervisor to a subordinate can, by itself, support a claim for a hostile work environment, we conclude that the district court improperly relied on our precedents when it rejected this possibility as a matter of law." So what does this mean? Is the Court of Appeals suggesting the district court can find that the N-word is enough to make out a case? It looks that way.

The Second Circuit also says that, in making out his gender discrimination claim, plaintiff can cite evidence that his supervisor frequently called him a "homo" and told him to "Man up, be a man." This is harassment based on gender stereotypes. While the district court properly considered this evidence in evaluating plaintiff's claim, it improperly declined to consider whether facially-neutral conduct bolstered the harassment claim. "We have held that a plaintiff may rely upon facially neutral conduct to bolster a harassment claim when 'the same individual engaged in multiple acts of harassment, some overtly [based on a protected characteristic] and some not.'” Since plaintiff's supervisor treated him like garbage, that maltreat may be folded into the racial and sexual harassment case, and the jury may conclude that facially-neutral acts of harassment were in fact motivated by plaintiff's gender and race.

The district court also blew it in not evaluating plaintiff's harassment claims as a whole. In fact, plaintiff alleged about 20 acts of harassment during his 15-months of employment, including two severe incidents (the racial comment and the supervisor rubbing himself against plaintiff's buttocks). Viewed as a whole, all of this is enough to win the case. In and of itself, the Circuit says, it does not matter that plaintiff only missed one day of work because of the harassment. What is more, the Court of Appeals says, the evidence of racial, sexual and national origin harassment can be viewed in the aggregate in finding that, i.e., the racial harassment exacerbated the sexual harassment.

Thursday, April 27, 2017

Outrageous vulgarities no basis to fire employee during union fight

The employees at a catering company in New York City were trying to organize a union. Management, of course, was against this. One employee insulted his supervisor on Facebook, using unprecedented vulgarities in also insulting his supervisor's mother. Management, of course, fired him. Is this a case? You're Goddamned right it's a case.

The case is NLRB v. Pier Sixty, LLC, decided on April 21. Two days before the workers voted to unionize, a supervisor by the name of McSweeney addressed them, exhibiting some degree of disrespect for the staff. Shortly thereafter, one employee, Perez, wrote this on Facebook: "Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!" Perez challenged his termination as retaliation for protected union activity. The NLRB agreed, and the Second Circuit (Cabranes, Chin and Kearse) affirms. So the employee does have a case.

Employers cannot fire people for engaging in union activity. "But even an employee engaged in ostensibly protected activity may act in such an abusive manner that he loses the protection of the NLRA." Is Perez's Facebook post sufficiently abusive to warrant his termination? The Court of Appeals says it is not, for the following reasons:

First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. Pier Sixty had demonstrated its hostility toward employees’ union activities in the period immediately prior to the representation election and proximate to Perez’s post. Pier Sixty had threatened to rescind benefits and/or fire employees who voted for unionization. It also had enforced a “no talk” rule on groups of employees,
including Perez and Gonzalez, who were prevented by McSweeney from discussing the Union. Perez’s Facebook post explicitly protested mistreatment by management and exhorted employees to “Vote YES for the UNION.” Thus, the [NLRB] Board could reasonably determine that Perez’s outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.
I love this reasoning. It takes an outrageous set of facts and makes it legal. And this is from three judges before whom I have argued many times and I seriously doubt they use language like this even in private conversation.

Moreover, the Court says, the Facebook post is not too offensive because the workplace was rife with this kind of foul language, for which employees are rarely written up. And no one ever gets fired for using this language. McSweeney also talks this way to his employees, calling them "motherfuckers" and "fucking stupid." While "one could draw a distinction between generalize scatology (or even cursing at someone) and, on the other hand, cursing someone's mother and family, ... one could reasonably decide, as the ALJ did in this case, that Perez's comments 'were not a slur against McSweeney's family but, rather, an epithet directed to McSweeney himself." Again, this is my kind of legal reasoning, which footnotes to scholarly works about how "different groups respond to the same words differently" and "among some groups, certain maternal insults could be perceived as 'fighting words.'" One book says that "all over the world groups of people have their ways to insult mothers or use mothers to insult others."

The final round of legal reasoning goes like this:

Third, the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible.

Wednesday, April 26, 2017

SDNY issues TRO in FLSA case to prevent retaliation based on immigration status

A Southern District judge has issued a temporary restraining order that prohibits an employer in an FLSA case from "instructing all staff of All City Remodeling, Inc. to "provide an original social security card before collecting [their] weekly check." Plaintiff says this directive constitutes unlawful retaliation and that "this request for social security cards, made shortly after Plaintiffs raised concerns about other retaliatory conduct and shortly before the start of depositions, constitutes an implied threat or intimidation against Plaintiffs' exercise of their rights under the FLSA." Judge Torres grants the TRO,

The case is Alaguachi v. All City Remodeling, 15 Civ. 9688 (AT) (RLE). The TRO was issued on April 20. Judge Torres notes that "the reporting of an employee's immigration status -- as implicitly threatened by Defendants' conduct constitutes an adverse employment action." Also bear in mind that a plaintiff's immigration status is irrelevant in determining whether the plaintiff has a case under the Act. If you do the work, you get paid no matter what. The order is below.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------
VICTOR P ALAGUACHI, DANIEL GALDAME,
and MARCO MOROCHO, on behalf ofthemselves
and other employees similarly situated,

Plaintiffs,

-against-

ALL CITY REMODELING, INC., T &G
CONTRACTING INC., GEORGE TSIMOYIANIS,
and JOHN DOES 1-100, the actual names ofsuch
individuals or entities being unknown,

Defendants.
-------------------------------------------------------------------
TEMPORARY RESTRAINING ORDER

ANALISA TORRES, District Judge:

On April 20, 2017, Plaintiffs filed an emergency motion seeking a temporary restraining order or preliminary injunction against allegedly retaliatory actions by Defendants in this wage and hour action. Letter Mot., ECF No. 128. In particular, Plaintiffs provided an April 18 memorandum sent by Defendant George Tsimoyianis instructing all staff of All City Remodeling, Inc. to "provide an original social security card before collecting [their] weekly check on Friday, April 21, 2017." Id Ex. A. Plaintiffs contend that Defendant's conduct constitutes retaliation in violation of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 215(a)(3), as well as an unfair immigration-related employment practice in violation of 8 U.S.C. § 1324b(a)(6).

The standard for entry of a temporary restraining order ("TRO") "is the same as for a preliminary injunction." Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). In particular, "a party must demonstrate '(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the  merits to make them a fair grounds for litigation and a balance of hardships tipping decidedly in the movant's favor."' Id (quoting MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 192 (2d Cir. 2004)).

First, as to irreparable harm, ''[t]he Second Circuit has recognized that, depending on the facts and circumstances of a particular case, retaliation and the resulting weakened enforcement of federal law can itself be irreparable harm." Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 135 (W.D.N.Y. 2003) (citing Holt v. Cont'! Grp., 708 F.2d 87, 91 (2d Cir. 1983)). Likewise, "[i]t is well established that the anti-retaliation provision of the FLSA is critical to the entire enforcement scheme of the federal wage and hour law." Id. (citing Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960)).

Plaintiffs have sufficiently demonstrated that this request for social security cards, made shortly after Plaintiffs raised concerns about other retaliatory conduct and shortly before the start of depositions, constitutes an implied threat or intimidation against Plaintiffs' exercise of their rights under the FLSA. Without a temporary restraining order, such conduct would cause Plaintiffs irreparable harm. See id.

Second, Plaintiffs have demonstrated a likelihood of success on the merits. To state a prima facie claim for FLSA retaliation, "a plaintiff must show ' (1) participation in protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action."' Id at 136 (quoting Lai v. Eastpoint Int 'l, Inc., No. 99 Civ. 2095, 2000 WL 1234595, at *3 (S.D.N.Y. Aug. 31, 2000)). The present litigation constitutes protected activity on the part of Plaintiffs, and the reporting of an employee's immigration status -- as implicitly threatened by Defendants' conduct constitutes an adverse employment action. See id.; EEOC v. Rest. Co., 490 F. Supp. 2d 1039, 1046, 1050-5 I (D. Minn. 2007); Contreras v. Corinthian Vigor Ins. Brokerage, 103 F. Supp. 2d 1180, 1185 (N.D. Cal. 2000). Finally, as discussed above, the timing of Defendants' conduct in relationship to other events in this litigation is sufficient to infer a causal connection. See Centeno-Beruny, 302 F. Supp. 2d at 136; EEOC, 490 F. Supp. 2d at 1050-51 ("One week after Torres complained to upper management about Centeno's behavior, she was terminated, or at least told that she could not return without proper documentation.").

Having met the standard for a temporary restraining order, Plaintiffs' motion is GRANTED to the extent that:

1. Defendants are prohibited from taking any adverse employment actions or retaliating in any way against Plaintiffs and putative class and collective action members on the basis of their participation in this litigation.

2. Defendants are temporarily restrained from soliciting from Plaintiffs and putative class and collective action members any information regarding immigration status, including requiring the presentation of social-security cards.

3. The parties shall confer at their earliest convenience and contact chambers at (212) 8050292
to schedule a prompt hearing on Plaintiffs' request for a preliminary injunction.

This Order is effective from April 20, 2017, at 7:00 p.m. through May 1, 2017, at 5:00 p.m.
or as further ordered by the Court.

SO ORDERED.

Dated: April 20, 2017
New York, New York

ANALISA TORRES
United States District Judge

Tuesday, April 25, 2017

Win some, lose some

This plaintiff has been in litigation against her employer for over a decade. That litigation will continue, thanks to the Court of Appeals, which finds her second lawsuit against the City of Syracuse states a plausible claim for discrimination.

The case is Dotson v. City of Syracuse, a summary order decided on April 24. Dotson is a Community Service Worker who originally sued her employer in 2004, alleging discrimination and retaliation. In 2011, a jury awarded her $225,000 in damages, finding that she suffered retaliation for complaining about pornography in the workplace.

The second lawsuit -- and the subject of this appeal -- was filed in connection with things that happened after the first lawsuit was filed. She claims her suspended in 2012 was discriminatory. The district court rejected that claim from the outset, but the Court of Appeals (Wesley, Kearse and Livingston) reinstates it. The Court of Appeals reminds us that "when evaluating pretext [under Title VII], a court must consider the plaintiff's evidence as a whole, including evidence evidence of discriminatory or disparaging language." The cases in support of these propositions are Walsh v. NYC Housing Authority,. 828 F.3d 70 (2d Cir. 2016), and Danzer v. Norden Systems, 151 F.3d 50 (2d Cir. 1998). Under this standard, plaintiff has a case. The two people who played a role in plaintiff's discipline in 2008 both made stupid comments that reflected hostility toward women. One said that "broads can't work together" because "they'll just be calling for back up all the time." The other said "he could not take hiring another woman" because "he was tired of dealing with their problems." Statements like this will give you a case, and the City of Syracuse now has to either get around these admissions or show that plaintiff can't win her case for other reasons.

But you can't win them all. Plaintiff also says she was suspended in 2012 for complaining about pornography in 2003. That's a nine-year gap. Courts will usually find a nine-month gap too long for retaliation cases. Plaintiff tries to get around this by arguing that the jury verdict in her first lawsuit happened in November 2011 and the discipline took place in February 2012. That certainly narrows the gap, but the Court of Appeals says the verdict is not "protected activity" under Title VII (although it probably threw the City into a rage and gave them an incentive to take it out against plaintiff). The Second Circuit says "the more relevant starting point is the time of the employee's protected activity -- here, the filing of the lawsuit, not its ultimate resolution." That eight-year gap will not cut it, so the retaliation claim is gone.

I can see a jury accepting the timeline proposed by plaintiff. The jury verdict is not protected activity, but it's a major event in the first lawsuit. It is probably enough to trigger a retaliatory impulse, since the City probably thinks it should won the case. But Title VII does not say verdicts constitute protected activity. A loophole that, I'm sure, the drafters of Title VII never thought about.

Friday, April 21, 2017

Yeah, it's legal

The police entered the apartment building with the owner's consent in order to keep the common areas free from drugs and crime. They found the defendant drinking alcohol on the third floor, so they decided to give him a summons for violating New York's open containers law, which prohibits alcoholic beverages in any "public place." The officer frisked defendant and found an illegal firearm. Should the courts suppress the firearm as the fruit of an unlawful search?

The case is United States v. Diaz, decided on April 18. There are two issues here: did the officer have probable cause to search Diaz? And was the warrantless search illegal if the officer did not intend to arrest defendant when he began the search? The Court of Appeals (Sack, Walker and Chim) upholds the search.

Issue number 1 asks if the officer had probable cause to arrest defendant for violating the open container law. This is tricky because the apartment building stairwell is arguably not a public place under the New York City penal code, which defines public place as "a place to which the public or a substantial group of persons has access, including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city." Since the law says nothing about locked residential buildings or common areas, did the officer reasonably believe it was a public place under the law? The Court of Appeals says Yes. The Supreme Court said a few years ago (Heien v. North Carolina) that the police are able to arrest someone based on their reasonable misunderstanding of the law that authorized the arrest. Judge Sack says the City law is ambiguous and the courts have not yet clarified its scope. Some trial courts in New York have interpreted the City law to include apartment building lobbies. For these reasons, the officer acted reasonably under Supreme Court authority, even if the City law did not expressly authorize this search.

Issue number 2 asks whether the police can legally search someone if, at the time of the search, he did not intend to arrest the defendant, and makes the arrest after he finds something illegal, in this case, a gun. The Second Circuit took up this issue in 1977, ruling that a search was legal because the officer had probable cause to arrest the defendant for speeding, regardless of whether or nor the officer intended to arrest the defendant before finding drugs in the car. 1977 was a long time ago, but cases from 1977 can still be good law. While the defendant argues that the 1977 precedent has been repudiated by subsequent precedent, the Second Circuit is not buying it. This arrest was legal.  

Thursday, April 20, 2017

Misplaced chair no basis for prisoners' rights suit

I sometimes wonder what federal judges think of the weaker cases that come before them. This is such a case. The plaintiff is an inmate who "alleged that the prison employee violated his Eighth
Amendment rights by failing to remove a chair from a baseball field. Cintron later ran into the
chair during a game and broke his arm." The Court of Appeals says plaintiff has no case.

The case is Cintron v. Doldo, a summary order decided on April 19. Inmates are allowed to file their own lawsuits. They do have constitutional rights, and without those protections, just imagine what the jails would look like. But if an inmate files too many frivolous suits, the courts can require him to seek pre-filing clearing before bringing another action. Even if the cases are quite weak, someone representing the government still has to do the work, and the courts have to review the matter, taking time away from other cases.

This plaintiff sues under the Eighth Amendment, which prohibits cruel and inhumane jail punishments. The courts have interpreted the Eighth Amendment to cover conditions of confinements inside the jail. Usually, these cases involve bad medical treatment or abusive prison guards. The legal standard is this: "a court should assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.”

The Second Circuit (Katzmann, Jacobs and Leval) says there is no case here. "The placement of the chair on the baseball field did not constitute a 'deprivation . . . sufficiently serious that [Cintron] was denied the minimal civilized measure of life’s necessities,' nor did treatment by prison staff member Mattraw 'deprive [Cintron] of his basic human needs.'” Nor did plaintiff allege that prison staff acted with deliberate indifference.

Wednesday, April 19, 2017

2d Circuit declines to hold that Title VII prohbits sexual orientation discrimination

The Second Circuit has once again declined to rule that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation, ruling that it cannot overrule a Second Circuit ruling from 2000 that said "sex discrimination" does not extend to gays and lesbians.

The case is Zarda v. Altitude Express, decided on April 18. I helped write the brief with lead counsel, Gregory Antollino, who argued the appeal. Zarda was a skydiver who was fired after a customer complained that he told her about his sexual orientation. A straight skydiver was not terminated after telling a customer about his own sexual orientation. The case went to trial in federal on a state-law discrimination claim after the district court ruled that plaintiff could not seek any relief under Title VII. The jury returned a defense verdict and plaintiff appealed the trial court's Title VII ruling, arguing that the EEOC's recent directive that Title VII prohibits sexual orientation discrimination renders the Second Circuit's decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), obsolete.

A few weeks ago, the Second Circuit took up this issue, holding in Christianson v. Omnicom that one Second Circuit panel cannot overrule the decision of a prior panel. Two judges in Christianson issued a concurrence stating the time may be right to bring the Court of Appeals into the modern age and recognize that sexual orientation is in fact sex discrimination. Citing Christianson, the Zarda Court says it cannot overturn Simonton. The Second Circuit is essentially inviting Zarda to seek en banc review on this issue. Astute Title VII aficionados know that the Seventh Circuit recently overruled a prior decision in ruling en banc that Title VII prohibits sexual orientation discrimination. Will the Second Circuit do the same?

An interesting side note. The plaintiff in Zarda lost his sexual orientation claim at trial under state law. Defendant argued that Zarda cannot win his Title VII appeal because the jury has already said there was no discrimination. Zarda got around this by pointing out that the jury charge on the state law claim asked whether Zarda could prove "but for" causation. That is not the standard under Title VII, which asks whether the plaintiff's protected characteristic -- gender, race, etc. -- was a motivating factor in his termination. "Motivating factor" is a more plaintiff-friendly standard than "but-for" causation, so Zarda's Title VII challenge is not mooted by the adverse state-law verdict in federal court.