Thursday, June 22, 2017

Pretext and sexist comment entitles City law plaintiff to a trial

Federal court is not the only option for filing civil rights cases. Nor must plaintiffs file their claims under federal law. The New York City Human Rights Law also provides remedies for civil rights remedies, and the City law is not toothless. It directs courts to analyze City law claims separately from federal claims. The City law also directs courts to liberally apply the City law, which means plaintiffs sometimes win under the City law but lose under federal law.

The case is Barone v. Emmis Communications Corp., an Appellate Division First Department case decided on June 13. This City law claim alleges that plaintiff was fired because of her gender. The decision is brief and does not tell us much, but here is what we know:

While defendant said it fired plaintiff over her management deficiencies and insubordination, plaintiff put forward evidence of pretext in the form of evidence that her termination "represented a drastic shift from the favorable performance review which she received only three weeks earlier." What is more, she was on vacation for nearly a week of that three-week time period. So how badly could her performance have been right before her termination? The First Department states, "Nothing in the record explains why any defects in plaintiff's management style, identified in her otherwise favorable performance review, suddenly warranted her termination."

Although the appellate ruling does not mention this, the lower court decision found that plaintiff cannot win because a female supervisor was angry over plaintiff's romantic choices. The lower court also applied the same-actor inference in finding it is less likely that the person who hired a woman would fire that employee because of her gender. 

I don't how a claim like this would fare under federal law before a federal judge. Some judges will not assume that an unfair termination represents evidence of discriminatory intent. Particularly in federal courts, the plaintiffs cannot win without "pretext plus" evidence, which means a false reason and some other evidence suggesting the termination was racially motivated or caused by the plaintiff's gender.

The evidence of pretext may have been enough for plaintiff to repel the summary judgment motion under the City law. But the decision closes out with a paragraph suggesting that a female supervisor made a sexist comment that sheds light on defendant's motives in firing plaintiff. The supervisor told plaintiff that she lacked "emotional intelligence and empathy toward others." This purportedly highlighted shortcomings in plaintiff's ability to manage her subordinates. A comment like this may or may not entitle the plaintiff to a trial under federal law. While the lower court said these were merely stray remarks that shed no light on anything, that's now how the First Department sees it, and the case is remanded.

Tuesday, June 20, 2017

Supreme Court further narrows the remedies under Bivens in 9/11 detention case

If you want to sue state officials or state employees for constitutional violations, you can do so under 42 U.S.C. section 1983. But there is no Section 1983 when you want to sue federal officials. Instead, you have a Bivens action, named after a 1971 Supreme Court case that said you can sue federal officials under the Constitution, which recognizes an implied cause of action for those claims. Yet, Bivens actions are rare, as the courts are reluctant to expand Bivens liability in various contexts. That trend continues in this case in which 9/11 detainees want to sue federal officials, including former Attorney General Ashcroft.

The case is Ziglar v. Abbasi, a Supreme Court case issued on June 19. This case reverses a decision of the Second Circuit. There is no majority opinion here. Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch did not participate because he was not on the Court when the case was argued. Justice Breyer dissents.

The plaintiffs -- foreign nationals -- were rounded up in the aftermath of 9/11 and claims they were placed in inhumane conditions of confinement. The Court summarizes the allegations:

The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in “‘tiny cells for over 23 hours a day.’” Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—anytime they were moved, as well as at random in their cells.

Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of “physical and verbal abuse.” Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.
Had plaintiffs sued state officials for these civil rights violations, the case would be allowed to proceed unless the defendants could somehow invoke qualified immunity. Section 1983 claims do not have built-in prohibitions against cases like this. But Bivens does have those prohibitions, as the Supreme Court reminds us each time it takes up another Bivens action, noting that the Court has only twice since 1971 allowed anyone to sue a federal official for such a claim: once in 1979 when someone was able to sue a congressman for sex discrimination and once in 1980 when a prisoner's estate was able to sue federal jailers for failing to treat his asthma. 1979 and 1980 were a long time ago, with different Supreme Court justices who -- let's face it -- were less hostile to the expansion of civil rights. Since that time, the Supreme Court has closed the door even further on Bivens claims, noting that it is a "disfavored" judicial remedy.

One rationale for narrowing the possibilities under Bivens, the Court says, is respect for the separation of powers. Congress is in the best position to decide who can sue federal officials. Moreover, the Court has long held that "a Bivens remedy will not be available if there are 'special factors counselling hesitation in the absence of affirmative action by Congress."

In this case, the Court will not touch the plaintiffs' claims under Bivens. Not only is a Bivens action not "a proper vehicle for altering an entity's policy," but this case would intrude on Executive Branch decisionmaking in the realm of national security, normally a matter left to Congress, not the courts. In the end, the plaintiffs have no remedy. In theory Congress can do something about their ill-treatment, but it's been 16 years since the plaintiffs were rounded up and Congress has been silent on the matter, the Court notes.

Commentary about this case says the Court has further clamped down on Bivens remedies. I agree with that assessment. Justice Kennedy's majority opinion repeatedly notes how rare Bivens actions are, and how courts remain reluctant to expand remedies under that cause of action. This case emphasizes separation of powers principles, further allowing the Court to distance itself from expanding remedies under Bivens. If you want to bring a civil rights action against a government official, first make sure that your life is in the hands of a state or local employee, and not the federal government.

Monday, June 19, 2017

2d Circuit provides guidance on Iqbal in Title IX retaliation case

The Court of Appeals has reinstated a Title IX case against the University of Rochester, which allegedly retaliated against a music student who rebuffed his professor's sexual advances. The decision provides some much-needed guidance on how to apply the Supreme Court's Iqbal test, which governs motions to dismiss under Rule 12.

The case is Irrea v. Humphreys, decided on June 15. Irrea was the music student at the prestigious Eastman School of Music at the University of Rochester. Humphreys made various unwanted sexual advances toward Irrea. When Irrea rejected those advances, Humphreys gave him a failing grade for an important piano recital. This failing grade was unusual for plaintiff, who had never previously failed a solo recital in his 27 years playing piano. Humphreys told Irrea that he would never get a university professor job and threatened to "make his life a living hell" if he reported the sexual harassment. As it happened, Irrea was unable to find work or even get an interview at any of the 28 colleges and universities to which he applied, which is "extraordinarily rare [and unheard of] for an Eastman graduate." Plaintiff says this was because Humphreys gave him negative references in retaliation for rejecting his sexual advances.The district court dismissed the case under Rule 12. The Second Circuit (Newman, Lynch and Cabranes) brings it back.

In 2009, the Supreme Court discovered for the first time that the Federal Rules of Civil Procedure contain a plausibility requirement for resolving motions to dismiss under Rule 12. It was there the whole time (the rules were drafted in 1937), but no one had ever noticed it before. Under Iqbal, it is not enough to plead facts that give rise to a possible case. The facts must give rise to a plausible case, a higher burden. Determining what is plausible is still something of a roll of the dice. You know plausibility when you see it. But since each judge has his or her own background and personal experience, what may be plausible to Judge McCartney may not be plausible to Judge Lennon. Ultimately, it's all about the context of the case and "common sense," as the Supreme Court said in Iqbal. Writing for the majority in the Irrera case, Judge Newman notes that Iqbal arose in the context of a 9/11 case. But, Judge Newman notes, "even in that context, four justices of the Supreme Court deemed the allegations sufficient to meet the plausibility standard, but five justices did not." This a judicious way of saying that plausibility is in the eye of the beholder. Because, let's face it, if four Supreme Court Justices think a claim is plausible, then it probably is, even if their five colleagues don't think so.

In this case, the context of plaintiff's allegations give rise to a plausible case. The Second Circuit notes that we are talking about the plaintiff's quest for a teaching position after graduating from one of the most prestigious music schools in the country. "Although it is not impossible that all twenty-eight schools to which he applied for open teaching positions deemed his credentials insufficient to warrant an interview, it is plausible that these schools received negative references from the chairman of Eastman's piano department, who had been Irrera's teacher," particularly since this teacher threatened to make plaintiff's life a "living hell" if he complained about the sexual harassment. It is also plausible that schools to which plaintiff had applied would have called Humphreys (the department chair) for a reference.

This is not to say that plaintiff has a slam-dunk. But the Court of Appeals relies on "common experience" in determining that the case can proceed to discovery. The Court states:

Although Irrera’s complaint makes no allegation that he is aware of a negative reference sent to any particular school, common experience indicates that schools and colleges rarely, if ever, disclose the content of the references they receive, in the absence of court-ordered discovery. Although some of these circumstances occurred outside the applicable limitations period, as we concluded in our summary order, they are nonetheless relevant to Irrera’s timely claim of retaliation, and they persuade us that that claim is plausible and that dismissal at the pleading stage was error




Friday, June 16, 2017

Recording devices OK at Whole Paycheck

Did you know that some people call Whole Foods "Whole Paycheck"? I'm just throwing that out there. Putting that aside, Whole Foods has failed in its efforts to prevent employees from using recording devices at work. The Court of Appeals finds that the National Labor Relations Board was correct in holding that the no-recording rule may chill union rights.

The case is Whole Foods Market Group v. NLRB, a summary order decided on June 1. The Second Circuit ruling is not clear on this, but Whole Foods apparently told its workers they cannot record anything at work. Under the National Labor Relations Act, it is an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights under the Act. The ultimate question is whether the rules "would reasonably tend to chill employees in the exercise of" their rights. It is even illegal if employees would reasonably construe the employer's rule to prohibit protected activity.

The Court of Appeals (Hall, Chin and Hall [D.J.]) says the NLRB was right to find that, in some instances, recording may be protected union activity. The NLRB also reasonably found that, "because Whole Foods' no-recording policies prohibited all recording without management approval, 'employees would reasonably construe the language to prohibit' recording" under the Act. While Whole Foods argued that the rule was intended to promote employee communication in the workplace, "the Board reasonably concluded that the policies' overbroad language could 'chill' an employee's rights" under the Act "because the policies as written are not limited to controlling those activities in which employees are not acting in concert."

In a footnote, the Court of Appeals notes that some no-recording policies may be legal. The footnote reads in part:

It should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the Act. Whole Foods’ interests in maintaining such policies can be accommodated simply by their narrowing the policies’ scope. See Flagstaff Med. Ctr., Inc., 357 N.L.R.B. 659, 659–60, 683 (2011) (holding that no-photography policy was lawful where hospital demonstrated patient privacy interest); Target Corp., 359 N.L.R.B. No. 103, slip op. at 2–3 (Apr. 26, 2013) (holding that reporting policy of unknown visitors in parking lot was lawful where rule was an employee safety policy).

Wednesday, June 14, 2017

Here is the correct procedure for amending the complaint in the face of a Rule 12 motion

When the plaintiff files a federal lawsuit and the defendant moves to dismiss the complaint, what is the plaintiff's obligation in filing a motion to amend the complaint to avoid outright dismissal? There is an answer to that question, but the district court in this case overlooked it.

The case is Cresci v. Mohawk Valley Community College, a summary order decided on June 2. Plaintiff is a lawyer who claims the college denied him employment in violation of the First Amendment and USSERA, which prohibits discrimination on the basis of military service. The district court dismissed those claims, but plaintiff argues among other things on appeal that he was denied the right to move to amend the complaint to save the claim. In reversing that decision on the motion to amend, the Court of Appeals (Leval, Calabresi and Carney) invokes a procedure that you may not have been aware of.

In Loreley Financing v. Wells Fargo, 797 F.3d 160 (2d Cir. 2015), the Second Circuit said that "The proper time for a plaintiff to move to amend the complaint is when the plaintiff learns from the District Court in what respect the complaint is deficient. Before learning from the court what are its deficiencies, the plaintiff cannot know whether he is capable of amending the complaint efficaciously." This means that the time to move to amend is not when the defendant argues that the complaint is deficient. Rather, the time to amend is when the district court identifies those deficiencies in a court ruling. "Before learning from the court what are its deficiencies, the plaintiff cannot know whether he is capable of amending the complaint efficaciously."

The district court misapplied the Loreley procedure, ruling in a single order that the complaint failed to state a claim and denying plaintiff leave to amend the complaint, "faulting him for having failed to submit a proposed amended complaint in the time between the defendant's motion to dismiss and the court's ruling on it." As the Court of Appeals says, "It is the District Court’s ruling, not the defendant’s arguments in support of a motion to dismiss, that puts a plaintiff on notice of the complaint’s deficiencies. A plaintiff has no obligation to replead merely because the defendant has argued that the complaint is deficient, without knowing whether the court will agree."

Tuesday, June 13, 2017

No relief under the ADA for retaliation, HWE and other claims

There are many ways for a plaintiff to lose a disability discrimination case in federal court. This case highlights many of those pitfalls.

The case is Flieger v. Eastern Suffok BOCES, a summary order decided on June 1. To win a case under the Americans with Disabilities Act, you have to be disabled. But plaintiff is not disabled under the Act. While she suffered a back injury -- and we all know that back pain hurts like hell -- on the day of the injury, she did not leave work early but instead took some Aleve and kept working. She came back to work the next day and took no time off over the injury. This all means she was not substantially impaired in any major life activity.

Plaintiff also suffered no adverse employment actions because of her disability. Bad things did happen to her, but they were not material changes in her everyday work experience. While plaintiff was denied a summer school teaching position, she admitted at deposition that she understood that employment for positions like this were discretionary and not guaranteed. She also took too many sick days, which somehow rendered her ineligible for the summer position. While she was transferred to other classrooms, these are not enough. One transfer was not a demotion or setback to her career; the only problem with one transfer was that the the other teacher she had to work with was a "low talker," a phrase the Second Circuit (Newman, Pooler and Hall) uses without quotations or any footnote reference to Seinfeld. The other classroom transfer was, in the Second Circuit's view, not done for pretextual reasons, as management said it wanted plaintiff to have extra supervision, and the evidence shows that the decisionmaker did not discriminate against plaintiff and that, instead, plaintiff was quite thankful for this supervisor's assistance in sending her to the Mayo clinic, and she also thanked her for the transfer in glowing terms.

Plaintiff's retaliation claim under the ADA also fails. Plaintiff says the classroom transfers were retaliatory for complaining about discrimination. But the Second Circuit says that the first transfer was not retaliatory because her visit to the Mayo Clinic was not a complaint of discrimination nor a request for an accommodation. The second classroom transfer was not retaliatory for the same reason it was not discriminatory under the ADA.

We also have a hostile work environment claim under the ADA. That claim fails also. Plaintiff had a hearing disability. A supervisor said after learning of plaintiff's disability that she "didn't ask for a deaf assistant." While this was inappropriate language, this comment did not rise to the level of severity required for a single incident to create a hostile work environment. Plaintiff also told another supervisor at the time that she was being treated fairly.

Finally, plaintiff claims she was denied a reasonable accommodation because of her disability. This claim is also dismissed. Plaintiff is unable to physically hold or escort a student in danger of causing injury to himself or others, and she cannot administer any crisis intervention or prevention techniques because she cannot engage in any kind of restricting. In other words, there are certain tasks that plaintiff cannot perform, with or without an accommodation. That means she cannot perform essential job functions and is therefore not qualified for an accommodation under the ADA.

Monday, June 12, 2017

Father-principal public assembly dispute goes to trial

This case is a horse of a different color, clarifying what it takes to win a freedom of assembly case against a public school district that kicked a father off the property and away from other school events in retaliation for speaking out against his daughter's bullying by the school principal.

The case is Johnson v. Perry, decided on June 8. Johnson is the father. His daughter was a school athlete. The principal, Perry, bullied the daughter into remaining on the girls varsity basketball team. Plaintiff objected to the bullying, and in retaliation the principal barred him from non-sporting events on school property. Believing the father a danger to the school and the staff (the principal and dad got into some heated arguments over the bullying), the principal also banned the father from sports events on school property and from all school events away from school property. As the Second Circuit (Kearse, Lohier and Jacobs) notes, "each aspect warrants particularized analysis." In other words, each expulsion order requires a separate constitutional analysis. The case drives home a point that I love to make: constitutional law is more complicated than you think.

First, we look at the expulsion from school property in general. The Court notes that "precedents as to whether a parent has a First Amendment right of access to school property are scarce. If such a right exists ... it is not limitless." The Court of Appeals notes that plaintiff has not cited any cases holding that parents have an unlimited right of access to school property. In addition, school officials do have a duty to prevent boisterous and threatening conduct on campus. What it all means is that the principal gets qualified immunity on this issue because First Amendment case law is not clearly established on the unlimited right of access.

As for the order expelling the parent from the school for athletic competitions, dad has a case. While the school is a limited public forum in the context of sporting events (meaning you can kick people out for any rational basis and without discriminating on the basis of viewpoint), people are actually encouraged to be boisterous and rowdy during sporting events, so the father's alleged boisterous behavior is no justification. If the jury believes the father, he was expelled from the on-campus sporting events because of the father's viewpoint and that the expulsion was not reasonable. The Court writes:

The jury could permissibly find that Perry had repeatedly bullied JD, that Perry had falsely denied bullying her and maligned her, and that Johnson had vehemently complained of the bullying and the falsehoods. The jury could further infer that Johnson presented no threat of disruption or of harm to anyone--nor even any specter of intimidation, his daughter having already withdrawn from the varsity team before imposition of the ban--and that Perry's motive in banning Johnson from the Capital Prep limited public forum was to punish him for having expressed his views that Perry had engaged in bullying and falsification.
The principal also banned the father from attending any sporting events beyond school property. This is an easier call for the Court of Appeals. "First, the distinction between school regulations applicable on school property and those targeting events beyond school property is one that other Circuits, in assessing whether school authorities' restrictions violated First Amendment rights, had found important, and indeed dispositive." The principal cannot get qualified immunity on this issue. Interestingly, Judge Kearse cites cases from around the country in denying qualified immunity (judges usually only look to cases from the Supreme Court and their own Circuit on determining if the law was clearly established). In addition, the principal had actually banned pop from attending a high school sporting event held at Mohegan Sun, a private entity. If the jury finds that the father was not a threat to community and that the expulsion order was in retaliation for his speech, then the principal has no right to do that. This issue -- along with the on-campus athletic expulsion -- goes to the jury. 

Friday, June 9, 2017

Who is liable in criminal conviction discrimination cases?

Did you know it is illegal under New York law to fire someone -- or fail to hire them -- because of their criminal conviction? There are some exceptions to this rule (i.e., an embezzler probably can be fired if he has to handle money) but the presumption is that you get a second chance in this world. The issue raised in this case is how do you assign liability when the employer is told by a third party to fire the plaintiff?

The case is Griffin v. Sirva, Inc., decided on May 31. Plaintiffs worked for Astro Moving and Storage, which fired them after discovering their prior criminal convictions. Astro had signed a contract with Allied Van Lines that prohibited certain ex-convicts from working on Allied jobs. Can Allied be held liable for firing plaintiffs? The state law that gives rise to these claims was not clear on the answer, so the Second Circuit last year sent the case to the New York Court of Appeals for an answer.

The State Court of Appeals held the state law only limits liability in these cases to the plaintiff's employer. It also held that, in determining whether an entity is someone's employer, we consider four factors: "“(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct." This ultimately boils down the "the alleged employer's power to order and control the employee in his or her performance of work."

Finally, the State Court of Appeals said that the state law "extends liability to persons and entities beyond joint employers" and that it applies to out of state defendants. In the end, the provision should be construed liberally. Indeed, the state's highest court has applied this law to aiders and abettors who did not have any employment relationship with the plaintiff.

After two separate appeals, one to the Second Circuit which then sent the case to the New York Court of Appeals, the case is therefore sent back to the Southern District of New York.

Thursday, June 8, 2017

Yes and no on various employment discrimination claims

The second Rule 12 employment discrimination reversal in a week reinstates a lawsuit against the Roman Catholic Archdiocese, which allegedly fired a 67 year old employee because of his age. But the other discrimination claims in this case are dismissed.

The case is Franchino v. Terence Cardinal Cook Health Care Center, issued on June 2. The lawsuit claims defendant's relatively youthful management replaced plaintiff with a "much younger" employee after he was subjected to derogatory age-based cartoons, comments, emails and jokes in the workplace. Plaintiff says that management joined in these ageist insults. And, when plaintiff was falsely accused of misconduct, he was denied his procedural rights that were routinely granted to younger employees.

Under recent Second Circuit cases that clarify the minimal pleading burden for plaintiffs, including Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), these allegations are enough to open the door for discovery on plaintiff's age discrimination case. But plaintiff's national origin and sex discrimination claims do not fare as well. So this case is useful not only to see what gets the plaintiff past a Rule 12 motion but how a complaint fails to satisfy the Littlejohn test.

On the national origin and sex discrimination claims, plaintiff says that a supervisor wanted a co-worker, Mercado, disciplined or terminated, but human resources officials supported Mercado. Plaintiff also alleges that, in an effort to save her job, Mercado falsely accused plaintiff of sexually harassing a female employee. According to plaintiff, "superiors treated Mercado more favorably because she was a 'much younger Hispanic woman.'” With respect to the sex discrimination claim in particular, plaintiff alleges that he was replaced by a female employee. Despite the lenient standards under Littlejohn, these allegations are not enough to avoid a Rule 12 dismissal on the national origin and sex discrimination claims. Rather, "on the facts alleged, Mercado was concerned that she may lose her job, so she acted vindictively toward Franchino—not because of his membership in any protected classes, but because she perceived him as threatening her continued employment." 

Wednesday, June 7, 2017

"The other guy did it also" provides no basis for Title VII relief

Yet another Second Circuit ruling reminds us how difficult is is to show that you suffered discrimination because other guys at work who also broke the rules were not punished.

The case is Diggs v. Niagara Mohawk, a summary order decided on May 31. I was in court when this case was being argued, waiting to argue my own case. The plaintiff's lawyer told the Court of Appeals (Kearse, Livingston and Lohier) that he was an experienced lawyer and believed it was getting harder and harder to win racial discrimination cases without explicit evidence of racial bias, i.e., racist statements. The judges listened quietly before asking questions about the plaintiff's honesty.

Under the rules, if management singles you out for discipline but lets others get away with misconduct, you can bring a Title VII case if you and the others were "similarly situated in all material respects." I cannot tell you how much I loathe the phrase "similarly situated," a clunky choice of words that cannot be understood by non-lawyers. The better word is 'comparable." Anyway, plaintiff -- disciplined for using a company backhoe for personal reasons without permission and then lying about -- is not comparable to the others at work who broke the rules. The case is dismissed.

Not only did plaintiff lose an arbitration hearing arising from these shenanigans (which gives the employer an advantage in federal court), it is not quite true that he did not mislead management about what he had done. We also cannot say the other wrongdoers were comparable to plaintiff.

It is true that Diggs never explicitly stated that he did not use the backhoe to try and remove a tree stump. However, it is undisputed that, despite a series of questions about what he did with the backhoe, Diggs contended that he had used the backhoe for transportation only and did not tell the company representatives that he used the backhoe to try and remove the stump until they presented the photographs to him. Second, Diggs points to the fact that the company convened two meetings about Contento’s misconduct as evidence that Contento was similarly dishonest during those proceedings. But this fact, standing alone, does not constitute strong evidence that Contento or any of Diggs’s alleged comparators were dishonest during their investigations. Indeed, Diggs points to no record evidence that Bain, Walker, and Contento lied about their conduct during the
investigatory meetings and further concedes that there is no evidence that Bailey was dishonest. Diggs’s speculation is insufficient to raise a genuine issue of material fact. We agree with the district court that in these circumstances, Diggs’s showing falls short of the “strong evidence” required to determine that the arbitrator’s decision was wrong as a matter of fact. Based on this record, a reasonable jury could not conclude that Diggs was similarly situated to his comparators.

Tuesday, June 6, 2017

Private school instructors not entitled to overtime

The Fair Labor Standards Act is celebrating its 80th birthday. It still produces lengthy court rulings determining what it all means. In this case, the U.S. Court of Appeals says that ESL instructors for a private educational entity are not entitled to overtime.

The case is Fernandez v. Zoni Language Centers, decided on May 26. In this potential class action, the plaintiffs claim they are not receiving the legally-mandated minimum wage or overtime pay. Under the FLSA, bona fide professionals are exempt from the statute's protections. Plaintiffs claim defendants -- who operate private educational facilities -- are not entitled to the exemption from the FLSA’s minimum wage and overtime requirements applicable to teachers working as bona fide professionals, because defendants are not “educational establishment[s],” as required for that exemption to apply. The Court of Appeals (Raggi, Calabresi and Lynch) disagrees, and the claims are dismissed.

Department of Labor regulations define "educational establishment" as "an elementary or secondary school system, an institution of higher education or other educational institution." Since the Zoni Centers are not associated with any public schools, for the defendants to win this case, they must show they fall within the exemption for "other educational institution."

Under a plain language analysis, Zoni Language Centers qualifies under this exemption because its "primary purpose is to provide English-language instruction to students using prescribed books in a traditional classroom environment,' such that "plaintiffs were engaged in the transmittal of knowledge to students in much the same way as primary and secondary school teachers, except that plaintiffs' students were adults, not children, and the knowledge conveyed to them focused on a single subject, the English language." These educational centers also have national certifications and state licensure.

The Court of Appeals finds the purpose of DOL regulations compel this conclusion, as the bona fide professional exemption was intended to exempt workers who "typically earned salaries well above the minimum wage, and ... were presumed to enjoy other compensatory privileges .. setting them apart from the nonexempt workers entitled to overtime pay." Plaintiffs earned more money per hour than the minimum wage worker, and the Court says it "must limit the application of FLSA exemptions 'to those establishments plainly and unmistakably within their terms and spirit.'"

Monday, June 5, 2017

Even the bad guys have constitutional rights

The facts in this decision are sketchy, but it appears the plaintiff is an accused domestic violence offender who is suing the police for an unlawful search into his home, an unlawful arrest and the use of excessive force. The police are trying to get out of the case on qualified immunity grounds, but the Court of Appeals will not go there.

The case is Penree v. City of Utica, a summary order decided on May 30. Police officers are immune from any lawsuits that raise legal issues that are not clearly established, i.e., the case law is not clear on whether the police acted illegally. After he was accused of domestic violence, the police evidently entered plaintiff's house without a warrant. The police argue that the law was not clearly established on whether they needed a warrant to enter the home because, in 2009, the Second Circuit held in Okin v. Village of Cornwall, 577 F.3d 415 (2d Cir. 2009), that in certain instances, the police have an affirmative duty to intervene when faced with alleged domestic violence. That means, the police argue, that the law was not clear on whether the police needed a warrant to enter the man's home.

This is a creative argument, but the Court of Appeals (Kearse, Hall and Chin) does not see it. The accused domestic violence defendant still has rights under the Constitution, the Court says.
An affirmative duty on the part of officers to intervene when faced with alleged domestic violence does not conflict with the duty not to enter the attacker's home without a warrant. It is possible -- indeed, an officer is, absent exigent circumstances, required -- to secure the substantive due process rights of domestic violence victims through legal means such as obtaining consent or a warrant to enter a home. The law prohibiting warrantless entry into a home without exigent circumstances was and continues to be clearly established, and is not undercut by our decision in Okin
The police also say they had exigent circumstances in going after the plaintiff because when they entered the house without a warrant, he ran up the stairs, away from the police. That's not exigent circumstances. Plaintiff was not running down the street, after all. Unless plaintiff was able to grow wings and fly out the second-floor window, he would eventually be cornered upstairs and the police could place him under arrest.

It looks like the police tased plaintiff inside his own house. While "it is not excessive force to deploy tasers, after a warning, against arrestees who are dangerous or resisting arrest," the officers don't seem to have a defense here. The Court says: "There was no countervailing government interest at all. The officers were in Penree's home unlawfully, he was not fleeing or resisting, the officers purportedly arrested him for a noncriminal offense, they saw he was holding his small child, and they gave no warning"

Friday, June 2, 2017

FMLA retaliation case is revived on appeal

Two carpenters who worked for Yeshiva University prevailed in the Court of Appeals this week, which ruled that the employer's inconsistent justifications for the termination, along with the timing of their dismissal, raises a plausible claim for retaliation under the Family and Medical Leave Act and the New York City Human Rights Law. I briefed and argued the appeal.

The case is Padilla v. Yeshiva University, a summary order filed on May 31, 2017. Each plaintiff has a disability. They sought and were granted leave under the FMLA. While they were out on leave, they were let go. Plaintiffs also alleged that their boss had expressed anger/impatience with prior medical leaves. Management argued that they were terminated under a reduction-in-force and that they had granted prior FMLA leaves to the plaintiffs, so there is no inference of FMLA retaliation. The same argument applied to the claim under the disability discrimination under the New York City Human Rights Law.

The district court dismissed the case under Rule 12. If you are new to this, the Second Circuit clarified the rules governing Rule 12 dismissals in employment discrimination cases in 2015, in two cases: Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), and Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which are must-read opinions if you handle cases like this in the Second Circuit. Those decisions say that the plaintiff's burden in pleading a discrimination claim is quite low, even under the Iqbal plausibility rules that judges have repeatedly cited in throwing out lawsuits left and right.

The Court of Appeals (Cabranes, Chin and Kearse) reverses, barely one week after oral argument, which can be heard at this link. The Court tells us:

We hold that at the pleading stage the inconsistent explanations for their termination, together with the other allegations in the complaint, including as to the timing and sequence of events and purported hostility with respect to Plaintiffs’ prior exercise of FMLA rights, are enough to support an inference of retaliation. Since “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” a plaintiff need only allege enough facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir. 2010). While it is noteworthy, as the district court noted, that the Plaintiffs previously applied for FMLA leave without any adverse consequences, that fact does not defeat the plausibility of Plaintiffs’ claim.
This reasoning also applies to the City law claim, which provides for greater rights than its federal counterpart.

Tuesday, May 30, 2017

Fireworks guy cannot sue police for malicious prosecution

We all know that fireworks are illegal, but no one seems to get arrested for shooting them off. But this guy got arrested for trying to destroy the evidence when the police came after him because of the illegal fireworks. In the end, he brought a malicious prosecution case against the police, but it gets dismissed on what we might call a technicality.

The case is Spak v. Phllips, decided on May 22. Spak lives in Connecticut. He was arrested for destroying evidence related to the illegal discharge of fireworks. Following the arrest, the prosecutor entered a nolle prosequi, which is Latin for "the prosecutor can't be bothered with the case." I don't think such a procedure exists in New York criminal law, but in Connecticut, a nolle prosequi is not an outright dismissal with prejudice. Rather, the prosecutor can initiate a second prosecution at any time before the statute of limitations expires. If the prosecution abandons the case completely, then state law requires that the police and all court records of the arrest are erased within 13 months.

The problem for plaintiff is that the statute of limitations for a federal malicious prosecution case is three years. In order to bring a malicious prosecution case, you have to show the prosecution terminated in your favor. A nolle prosequi is a favorable termination under Connecticut law. This is the first time the Second Circuit has resolved that issue, a holding that is consistent with the Restatement on Torts and a Fourth Circuit ruling from 2014.

That holding is good for other plaintiffs, but it does not help the plaintiff in this case. The question is whether the plaintiff filed the case within the statute of limitations. The Court of Appeals (Walker, Cabranes and Berman [D.J.]) says he did not. The Circuit court says the statute of limitations on the malicious prosecution case began to accrue when the prosecutor entered the nolle prosequi, and not after the 13-month period expires, at which time the records have to be erased. Since plaintiff filed this action more than three years after the nolle prosequi, his claim is time-barred and the case is dismissed.

Friday, May 26, 2017

Don't forget to plead those disparate impact claims

This case had potential to be interesting, but it fizzles out. Plaintiff was denied a job at Sam's Club after he failed the background check, which showed he was convicted of a drug offense. He claims the job denial violates the antidiscrimination laws because the hiring policy that prohibits the company from hiring certain drug offenses has a disparate impact on certain job applicants. The Court of Appeals rejects the claim.

The case is Karagozian v. Sam's East, Inc., a summary order decided on May 22. Plaintiff is a licensed optician who disclosed his felony conviction on the hiring application. But company policy says you cannot work in the department for which plaintiff was applying. Plaintiff says that EEOC statistics show that people are convicted of drug offenses at different rates, causing a disparate impact upon male job applicants. In a disparate impact case, the plaintiff can win if the facially neutral company policy falls heavily against people based on race or gender and the company cannot show a sufficient business necessity for the policy.

Is disparate impact a forgotten cause of action? It was last in the news a few years ago when Sonia Sotomayor was nominated to the Supreme Court. As a Second Circuit judge, she ruled against New Haven firefighters who had failed an exam that had a disparate impact on racial minorities. The case went to the Supreme Court, which ruled in favor of the firefighters. Before that, in 1990-91, when Congress was trying to amend the Civil Rights Act of 1964, the first President Bush objected to the disparate impact language, claiming it would force employers to adopt a quota policy to avoid getting sued for discrimination. He eventually signed the bill, and disparate impact -- originally created by the Supreme Court in 1971 -- is now codified in the Act.

Plaintiff loses this case because he does not actually bring a disparate impact claim. He brings a disparate treatment claim, which is resolved under a different set of standards and requires proof that the employer intended to discriminate. Under disparate impact, the employer can lose the case even if he did not harbor discriminatory intent.

Plaintiff tries to get around this by arguing that the policy bears no relationship to the position. But "that argument fails because disputes as to the wisdom of the employment policy cannot alone raise an inference of employment discrimination." The Court (Winter, Raggi and Hellerstein [D.J.]) then reminds us (as it often does) that it does not sit as a super-personnel department.

Thursday, May 25, 2017

Second Circuit certifies New York City Human Rights Law issue to State Court of Appeals

The New York City Human Rights law is a self-contained statute that provides employees greater protections that its state and federal counterparts. In 2005 and again in 2016, the City Council emphasized that the City law was intended to be more pro-plaintiff than Title VII, the ADEA, the Americans with Disabilities Act and the State Human Rights Law. This means the courts are still working through the City law to determine what it means.

The case is Makinen v. City of New York, decided on May 22. The issue here is whether the City law's disability discrimination provision makes it illegal to discriminate against untreated alcoholics, that is, people who are not in recovery. This case went to trial, and both plaintiffs prevailed. The jury awarded Makinen $16,100 in compensatory damages and $30,000 in punitives. The second plaintiff won $75,000 in compensatory damages and $30,000 in punitives.

This appeal concerns the proper interpretation of the City law. If the courts accept the City's narrow interpretation, the plaintiff may end up losing the case. Under the plain language of the City law, alcoholics who are not in recovery are not protected from discrimination. The statute says that "In the case of alcoholism," the definition of "disability" only applies "to a person who (1) is recovering or has recovered and (2) currently is free of such abuse." But under federal and state law, alcoholics are protected from discrimination even if they are not in recovery. The Court of Appeals says that "[n]either statute is limited to recovering or recovered alcoholics."

We interpret statutes by examining their plain language and their context. The City of New York argues that plaintiffs cannot win their case because they were perceived as alcoholics (they were not actually alcoholics) and were therefore not in recovery. In response, plaintiffs note that the City Council has emphasized that the City law provides broader protections than its state and federal counterparts in every way. Under this theory of statutory interpretation, the City law cannot provide alcoholics (or perceived alcoholics) fewer protections than the Americans with Disabilities Act and the New York Human Rights Law.

The Second Circuit (Lohier, Sack and Livingston) decide to certify this case to the New York Court of Appeals to determine to scope of the City law with respect to protections afforded to alcoholics who are not in treatment. Certification is a way to ensure that the state courts have the first opportunity to definitively interpret state and local laws before the federal court of appeals weighs in on the issue. This is the second time in a year that the Second Circuit has certified a City law issue to the State Court of Appeals. Last September, the Circuit sent Chauca v. Abraham, 841 F.3d 86 (2d Cir. 2016) (a case I am handling), to the State Court of Appeals to determine when plaintiffs in employment discrimination cases may recover punitive damages.


Wednesday, May 24, 2017

Court of Appeals takes away habeas victory

You will not find a more depressing statement of facts than this case, in which an intoxicated man shot and either injured or killed members of his girlfriend's family after his girlfriend told him he was drinking too much. It all happened at the man's birthday party. Of course, the jury convicted him of murder. And, of course, while in jail, the defendant blamed his lawyer, filing a habeas petition claiming ineffective assistance of counsel. A respected federal judge granted that motion, ruling that the defendant received ineffective assistance. The Court of Appeals disagrees, killing off the habeas petition.

The case is Waiters v. Lee, decided on May 22. Waiters' blood-alcohol content was sky-high. His trial counsel argued that Waiters was so intoxicated that he could not form the necessary intent to kill and injure his victims. Legally, this is a legitimate defense. You not only have to prove the defendant committed the unlawful act, but that he intended to do so. Diminished capacity means no intent, or at least diminished intent to cause harm.

Waiters brought the habeas petition pro se, arguing that his trial lawyer was ineffective because he did not call an expert witness to tell the jury that his intoxication was a mitigating factor in the shootings. Ineffective assistance claims can be won post-trial, but those victories are rare. You have to show counsel's performance fell below accepted standards and that that poor performance prejudiced the defense, or caused him to lose. Under federal habeas standards, you also have to show the state courts -- which get first crack on the ineffective assistance claim -- interpreted the Constitution unreasonably. Misinterpreting the Constitution by itself is not enough to win a habeas petition. The state court's interpretation has to be unreasonable. So the state courts can get it a little wrong. This is the state's rights theory of habeas corpus jurisprudence.

Writing for a 2-1 majority, Judge Livingston says Waiters cannot satisfy his burden in showing the state court had unreasonably denied his habeas petition. (Judge Jacobs dissents and would uphold the positive habeas ruling). The Court assumes for the sake of argument that Waiters' lawyer had unreasonably failed to hire an expert. It then says that, even so, that failure did not make a difference in the outcome of the criminal trial. The Court notes that that jury already knew that Waiters had been drinking all day and that he was intoxicated when he fired his gun at the victims. The jury also knew that his intoxication "had not rendered him incapable of purposeful action," including testimony that he went after his girlfriend's son because he was trying to break up the argument. The Court concludes, "we are not persuaded that, had the jury also heard from a medical expert and reviewed the full set of medical records, there is a sufficiently strong probability that it would have found differently such that the state trial court's determination to the contrary was unreasonable. While such evidence could have been proffered, it would not likely have made a difference in light of the strong, specific testimonial evidence indicating that Waiters formed the requisite intent to commit his crimes."

Thursday, May 18, 2017

SDNY judge allows sexual orientation discrimination case to proceed

The law is evolving quickly on the question whether Title VII makes it illegal to discriminate against employees based on their sexual orientation. While Second Circuit precedent continues to hold that Title VII does not prohibit this kind of discrimination, two en banc petitions are pending that would change that. In the meantime, a Southern District judge has refused to dismiss a sexual orientation discrimination case under Title VII.

The case is Philpott v. State of New York, 16 Civ. 6778, 2017 U.S. Dist. LEXIS 67591 (S.D.N.Y. May 3, 2017), decided by Judge Hellerstein. In 2000, the Second Circuit held in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), that sexual orientation discrimination is not sex discrimination, noting that Title VII says nothing about sexual orientation. Therefore, under Simonton, gay and lesbian employees had no recourse under Title VII. Since that time, the Supreme Court has recognized the right to same-sex marriage, and the Seventh Circuit Court of Appeals has (only recently) jettisoned its own Simonton-style precedent in ruling en banc that Title VII does in fact prohibit sexual orientation discrimination. See Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). Hively arose in part because in 2015 the EEOC determined for the first time that Title VII makes this kind of discrimination illegal. 

Earlier this year, the Second Circuit resolved two cases that allege sexual orientation discrimination under Title VII. In Christianson v. Omnicom, 852 F.3d 195 (2d Cir. 2017), the Court of Appeals said it was bound by Simonton and rejected the plaintiff's claim that he was fired because of his sexual orientation (although it did sustain the plaintiff's claim for sex stereotyping under the Supreme Court's Price Waterhouse decision, holding that Title VII makes it illegal to stereotype people based on gender). Two judges concurred in Christianson, stating that it was time for the Second Circuit to take a hard look at Simonton en banc. Shortly thereafter, in Zarda v. Altitude Express, ___ F.3d ___,
2017 U.S. App. LEXIS 6578 (2d Cir. April 18, 2017), the Court of Appeals again declined to overturn Simonton. (I am co-counsel to the plaintiff in Zarda, along with lead counsel Gregory Antollino, Esq.). En banc petitions have been filed in both Christianson and Zarda, so the Court of Appeals now has an opportunity to change course and follow the Seventh Circuit in holding that Title VII prohibits sexual orientation discrimination.

Judge Hellerstein notes this recent Title VII activity in this sexual orientation discrimination case. In declining to dismiss the plaintiff's sexual orientation discrimination claim, Judge Hellerstein writes that "The law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon. In light of the evolving state of the law, dismissal of plaintiff's Title VII claim is improper." This means that, for now, Judge Hellerstein is bucking Second Circuit authority. He writes:

In Christiansen, Chief Judge Katzmann wrote a concurring opinion, which was joined by Judge Margo Brodie (who was sitting on the Second Circuit by designation). See Christiansen, 852 F.3d at 201 (Katzmann, C.J., concurring). Judge Katzmann's majority concurrence persuasively outlines why sexual orientation discrimination is a form of sex discrimination and should therefore be cognizable under Title VII. See id. 201-06. Judge Katzmann articulated three distinct justifications for this conclusion, but his central point was that "sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex." This is because "sexual orientation cannot be defined or understood without reference to sex." Id. at 202.

Judge Katzmann also explained that sexual orientation discrimination is a form of sex discrimination  because "such discrimination is inherently rooted in gender stereotypes." Id. at 205. In fact, the Second Circuit had previously suggested as much in Dawson [v. Bumble & Bumble, 2d Circuit 2005], when it observed that "[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality." ... In light of this prior observation, Judge Katzmann reasoned that "it is logically untenable for us to insist that this particular gender stereotype" — stereotyping on the basis of sexual orientation — "is outside of the gender stereotype discrimination prohibition articulated in Price Waterhouse." Id. at 205. Judge Katzmann concluded his concurrence by stating that "in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII." Id. at 207. Revisiting this question was warranted "especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued." Id. at 202.
 

Monday, May 15, 2017

No smoking gun in academic discrimination case

This case acquaints us with two well-worn principles of employment discrimination cases. First, academic tenure cases are hard to win under the antidiscrimination laws. Second, evidence that looks like a smoking gun may fizzle out when motion practice rolls around.

The case is Baldwin v. State University of New York at Buffalo, a summary order decided on May 10. Baldwin was a lecturer in the health and wellness department. She was up for tenure. Under the university's standards, plaintiff had to show that she had published enough scholarly articles. The college was concerned that plaintiff had not in fact published enough. While this was all shaking out, plaintiff spoke with the head of her department, Roberts, about student complaints about allegedly inappropriate things that Roberts had said in class. Plaintiff also reported these student complaints elsewhere in the college hierarchy.

So we have two motives here for the tenure denial. Was it because plaintiff had not published enough? Or was it because plaintiff had exercised her rights under Title VI in reporting student complaints about Roberts' classroom comments? The Court of Appeals (Livingston, Lynch and Walker) upholds summary judgment. As a general matter, courts don't like to second-guess the academic judgments reached by the decisionmakers in making tenure decisions. The Court of Appeals says there is no pretext here because "Roberts's consistent perspective on Baldwin's publication record undermines the reasonableness of any inference that her complaints caused his negative recommendation." What this means for plaintiffs is that if management has harbored concerns about your job performance even before you engage in protected activity, the courts more likely than not are going to find that those concerns are not a pretext for discrimination or retaliation.

Plaintiff did present what would appear to be a smoking gun. The SUNY HR department sent plaintiff an email after she filed the discrimination complaint. The email says, "The College must continue ongoing review process for continuing appointment and promotion in order to meet contractual notification deadlines. However, if you file a discrimination complaint through our internal complaint process in the Office of Equity and Diversity, the outcome of the investigation into your complaint may impact on the ultimate decision regarding your appointment." The Court of Appeals, however, rejects the argument that this email represented a direct threat of retaliation if plaintiff pursued her complaint of discrimination. The Court of Appeals says:

The e-mail links the outcome—not the filing—of Baldwin’s complaint to the tenure decision. And, as the district court stated, the “full context makes plain” that this sentence was merely an explanation of how the timelines for a complaint and Baldwin’s tenure application would interact. Specifically, SUNY-Buffalo could not halt Baldwin’s tenure review because of contractual deadlines, but a finding of retaliation might affect SUNY-Buffalo’s ultimate decision on Baldwin’s application for tenure. Accordingly, the Earshen e-mail does not evidence retaliation and does not alter the conclusion, here, that the district court properly granted summary judgment to the Defendant-Appellee.

Friday, May 12, 2017

Victorious state court plaintiffs may recover attorneys' fees in employment discrimination cases against the state

The New York Court of Appeals has provided guidance on the Equal Access to Justice Act, a New York statute that allows certain victorious plaintiffs to recover attorneys' fees when they prevail against the state. The issue here: can the winning plaintiff recover fees if she wins a sexual harassment case under the Human Rights Law against the State of New York?

The case is Kimmel v. State of New York, decided on May 9. The plurality says the plaintiff can recover fees. This case resulted in a big win for the plaintiff, who received a jury award of more than $700,000, including 87,000 in past pain and suffering. At the time this case went to trial, unlike Title VII and other federal civil rights statutes, the Human Rights Law did not provide for attorneys' fees for victorious employment discrimination plaintiffs. (The HRL has since been amended to provide for fees for sex discrimination cases only).

What complicates this case is the wording of the statute, which says that prevailing plaintiffs can recover fees "in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust." The CPLR defines "action" as "any civil action or proceeding brought to seek judicial review of any action of the state." Except for cases brought in the Court of Claims. The state in this case argues that "judicial review" under the statute modifies "any civil action" and "proceeding" and therefore restricts EAJA fees to Article 78 proceedings and other cases seeking review of a state administrative action.

The Court of Appeals rejects that narrow statutory construction. Chief Judge Fiore says that, under this interpretation, since Article 78 and injunctive relief actions the statutory exclusion for cases brought in the Court of Claims would have no meaning, as that Court cannot entertain Article 78 proceedings. We do not want to interpret statutes in a way that would leave its provisions superfluous. The Court of Appeals employs other methods of statutory interpretation (and looks to the legislative history of the EAJA) in finding that Human Rights Law claims against the state entitle the prevailing plaintiff to attorneys' fees.

Wednesday, May 10, 2017

Close call in religious harassment case goes to the jury

This case alleges the plaintiff was subjected to a hostile work environment because of her national origin. The trial court granted summary judgment for the employer, stating that this case is "right on the knife's edge of either granting summary judgment or allowing the case to go the jury." The Court of Appeals sends the case to the jury.

The case is Ahmed v. Astoria Bank, a summary order decided on May 9. When is a close case good enough for the jury? When is the close case not close enough for the jury? Do you have to ask? If it's a close case, it's probably best to let the jury decide what happened. That's what the Court of Appeals (Walker, Lohier and Lynch) concludes in stating that "a reasonable jury could find that Ahmed was subjected to discriminatory harassment that was 'sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment, and that a specific basis exists for imputing the objectionable conduct to [Astoria Bank].'”

In particular, plaintiff put foward evidence that a senior supervisor, Figeroux had done the following:

(1) “constantly” told Ahmed to remove her hijab, which he referred to as a “rag,” (2) demeaned Ahmed’s race, ethnicity, and religion “[o]n several occasions,” and (3) made a comment during Ahmed’s interview on September 11, 2013 that Ahmed and two other Muslim employees were  “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.” 

Along with evidence that another supervisor, Russo, had used inappropriate hand gestures in speaking with plaintiff and spoke to her "very slowly" could lead a reasonable jury to find that Ahmed was subjected to “a steady barrage of opprobrious racial” and anti‐Muslim comments and conduct constituting a hostile work environment.

Monday, May 8, 2017

Justice Sotomayor speaks out over failure to take up excessive force case

In a little-noticed exchange among Supreme Court Justices last month, Justice Sotomayor lamented how the Supreme Court rarely intervenes when lower courts wrongly give police officers the benefit of the doubt in excessive force cases. Justice Sotomayor says this practice harms "society as a whole."

The case is Salazar-Limon v. Houston, issued on April 24. In this case, a Houston police officer shot the plaintiff in the back. While the plaintiff claimed the officer shot him as he tried to walk away from a confrontation with the officer, in contrast, the officer said the plaintiff turned toward him and reached for his waistband, as if for a gun, before the officer fired a shot. The lower courts said the officer is entitled to qualified immunity, dismissing the suit. Justice Sotomayor says the lower courts had actually resolved disputed factual issues in favor of the officer, contrary to the rules governing summary judgment. She says the parties' accounts "flatly contradict each other," necessitating a trial.

The Supreme Court did not vote to take this case, exercising its discretion in denying certiorari. But this case did not escape Justice Sotomayor's notice, who dissents from the certiorari denial by laying out the disputed facts and reminding the Court about the rules governing summary judgment that require a trial when the facts are disputed. She writes:

Only Thompson and Salazar-Limon know what happened on that overpass on October 29, 2010. It is possible that Salazar-Limon did something that Thompson reasonably found threatening; it is also possible that Thompson shot an unarmed man in the back without justification. What is clear is that our legal system does not entrust the resolution of this dispute to a judge faced with competing affidavits. The evenhanded administration of justice does not permit such a shortcut.

Our failure to correct the error made by the courts below leaves in place a judgment that accepts the word of one party over the word of another. It also continues a disturbing trend regarding the use of this Court’s resources. We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases. The erroneous grant of summary judgment in qualified-immunity cases imposes no less harm on “‘society as a whole,’" than does the erroneous denial of summary judgment in such cases.
Justices Thomas and Alito write in support of the Court's decision not to take the case, stating that "whether or not one agrees with the grant of summary judgment in favor of Officer Thompson, it is clear that the lower courts acted responsibly and attempted faithfully to apply the correct legal rule to what is at best a marginal set of facts" They add that "this Court applies uniform standards in determining whether to grant review in cases involving allegations that a law enforcement officer engaged in unconstitutional conduct." In the end, these Justices write: "regardless of whether the petitioner is an officer or an alleged victim of police misconduct, we rarely grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case. The case before us falls squarely in that category."

Friday, May 5, 2017

Managerial outburst following discrimination complaint is not retaliation

Not everything bad that happens at work is an adverse employment action allowing you to sue for discrimination under Title VII or the other employment discrimination laws. This case drives that point home.

The case is Dickens v. Hudson Sheraton Corp., a summary order decided on May 4. Plaintiff brings a retaliation claim. He says that after he participated in a union-sponsored meeting in which he "was attempting to oppose what he reasonably viewed as on-going discrimination," a supervisor, Mituza, engaged in "intimidation and threatening behavior" at the meeting and plaintiff was then denied bartending shifts. As plaintiff argues the case, these were the adverse employment actions.

Under the law, it's an adverse action if management's response to your good-faith discrimination complaints would dissuade a reasonably firm person for speaking out again. Sort of like icing out the whistleblower by doing something to him that will make him shut up in the future. The Supreme Court devised that test in the Burlington Northern case in 2006. What the Second Circuit (Hall, Lynch and Droney) reminds us, however, is that there must be "material adversity to separate significant from trivial harms" as "an employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience," except, of course, for federal judges who really don't have to put up with any crap from anyone.

The outburst at the November 2013 union meeting is not an adverse action under Title VII, because "it did not concern or affect Dickens's employment status. Nor did it reach the level of dissuading a reasonable worker from making a complaint." As for the bartending denial, the Court says, there are not enough facts in the record to connect that to the November 2013 protected activity.

Thursday, May 4, 2017

Inmate's pro se appeal overturns prison disciplinary finding

As a law student, I interned for a prisoners' rights office that, among other things, challenged the discipline meted out to inmates who were engaged in misconduct inside the prison. I learned that these adverse findings are difficult to challenge and that the hearings themselves are not the due process endeavors we associate with the outside world. Still, some inmates won their cases.

The case is In the Matter of Jackson v. Annucci, an Appellate Division ruling dated April 26. Here's how it works. When prison officials charge inmates with misconduct -- such as insubordination, fighting, whatever -- they are served with a misbehavior report. The inmate then gets a hearing where they are confronted with only some of the evidence against them. The inmate can also call witnesses. The inmates' rights often give way to security concerns. You can't call certain witnesses because that would disrupt jail operations, and there may be a confidential informant whose information will be used against you. That CI will not testify at the hearing, but the hearing officer has to make a determination that the CI is reliable. The inmate does not get a lawyer for these hearings. He has to defend himself.

In this case, the inmate was charged with using marijuana inside the prison. The inmate failed two urinalysis tests that tested positive for cannabinoids. It was also agreed upon by all parties that the inmate's medication produces false positives for cannabinoids in urinalysis tests. In ruling against the inmate, the hearing officer noted the positive urinalysis tests and a correction officer's testimony that he smelled the odor of marijuana near the inmate, who acted nervous and fidgety when asked about the odor. Other inmates were present in the outdoor area when the correction officer approached the inmate.

The Appellate Division overturns the hearing officer's findings against the inmate. The inmate handled this appeal pro se, by the way. The findings are not supported by "substantial evidence," the standard necessary to sustain adverse findings in the prison disciplinary context. Here is the reasoning:

Since the hearing officer stipulated that the petitioner’s medication produces false positives for cannabinoids in urinalysis tests, and since no evidence was submitted to contradict the petitioner’s evidence, the positive urinalysis tests results were of little probative value in establishing that the petitioner used cannabinoids. While the correction officer’s observations were sufficient to raise suspicion that the petitioner had violated the prison disciplinary rule, they were not adequate to reasonably support the conclusion that the petitioner had, in fact, violated the rule, especially since the correction officer’s detection of the marijuana odor was made outdoors where there were other inmates in the immediate vicinity of the petitioner. Accordingly, we find that the hearing officer’s determination was not supported by substantial evidence.

Wednesday, May 3, 2017

New research on employment discrimination verdicts and damages awards

A scholarly article written by a mediator who teaches at Columbia Law School provides insight into who wins and who loses their employment discrimination trials, and how much money they get from the jury. This article is useful in sizing up the value of a plaintiff's case. Unfortunately for plaintiffs' attorneys, the article does not provide much good news.

The article is at this link. Vivian Berger examined all employment discrimination cases filed in the Southern and Eastern Districts of New York from 2004 through 2010. This includes retaliation cases. In the SDNY, 70 cases went to trial. In the EDNY, 90 went to trial. Since some cases have multiple plaintiffs, in all, there were 200 plaintiffs. What do the statistics tell us?

First, of the 160 cases that went to trial, 48 resulted in plaintiffs' verdicts, a 30 percent ratio. The defendants won 67.5 percent of the time. Post-verdict adjustments -- thanks to motion practice -- reduce these numbers even further: a 28.1 percent success rate for plaintiffs. Excluding pro se cases, the overall success rate for plaintiffs is 30.3 percent. These numbers are similar in the SDNY (28.6 percent) and the EDNY (31.1 percent).

If we look at the overall number of plaintiffs, which takes into account multi-plaintiff cases, 34.5 percent won at trial in the SDNY and EDNY. Post-trial, that number is reduced to 33.0 percent. These numbers are better than single-plaintiff cases, probably since multiple plaintiffs reinforce each others' cases.

The research also shows that plaintiffs suing private entities (37.0 percent victory rate) tend to fare better than plaintiffs who sue public entities (25.3 percent). However, Berger writes, "the apparent disadvantage suffered by plaintiffs suing the government largely vanishes when the results are examined according to number of plaintiffs." Multiple-plaintiff cases against the government prevail 34.5 percent of the time. That same number applies to multiple-plaintiff cases against the private sector. Overall, retaliation cases (40 percent) fare better than straight discrimination cases. Sex and race/national origin cases prevail 12 to 13 percent of the time. This "suggests the correctness of the common wisdom: it is often easier to win on [retaliation] ground[s] than on a discrimination charge."

As for damages awards, Berger examined damages for pain and suffering and not back pay. Pain and suffering awards are more difficult to predict and stem from the jury's overall sense of fairness as opposed to mathematical calculations about lost income and benefits. These are sobering numbers for plaintiffs. For those who win their trials in the SDNY, the median pain and suffering award is $40,000. In the EDNY, the median number is $69,375. The median number is more realistic than the average number ($200,682 for both districts), which is skewed by outlier verdicts.

Berger also looks at punitive damages. Only 13.8 of the 160 trials even offered the jury a chance to award punitives. The average award was $466,413. In the SDNY, that's $314,250. In the EDNY, that's $583,462. Only 11.3 of the cases that went to trial even resulted in punitive damages. The dollar value goes down post-verdict, to $113,500 in the EDNY and $375,498 in the SDNY. The median award for punitive damages is $125,000 for both districts combined, or $45,000 for the SDNY and $200,000 in the EDNY. Post-verdict, those numbers go down even further: $30,000 in the SDNY and $50,000 in the EDNY.

As Berger notes, the more "extreme" cases tend to settle. That is my experience. But since most cases settle, this research allows litigants to predict with some degree of certainty what their cases are worth. This comes in handy during settlement negotiations, and it gives attorneys some concrete basis in telling their clients what their chances might be at trial and what their cases might be worth. 

Tuesday, May 2, 2017

How do we apportion sanctions under the federal rules?

This little-noticed Supreme Court case examines how to arrive at a precise sanction when a lawyer pulls a fast one in litigation and the court decides to order the offending litigant to pay the other side's legal costs.

The case is Goodyear Tire v. Haeger, decided on April 18. This is a product liability case alleging that Goodyear manufactured a defective tire that caused someone's motor home to drive off the road and flip over, a scary image, no doubt. During contentious discovery, Goodyear dragged its feet in producing test results for the tire, and the case eventually settled. Afterwards, the plaintiff's attorney learned that Goodyear had produced those test results in another case. Those test results showed that the tire got unusually hot at highway speeds, posing a safety risk. Goodyear admitted withholding the test results in this case. The trial court ordered Goodyear to pay the plaintiffs $2.7 million, the entire sum they had spent in legal fees and costs since the moment Goodyear had made its first dishonest discovery response. The Supreme Court says that was too much money and the trial court used the wrong formula in fixing the sanction.

Bad faith litigation behavior will cost you money. But how much money? The Supreme Court has said these sanctions must be compensatory and not punitive. "The fee award may go no further than to redress the wrongful party 'for losses sustained.'" This is a but-for causation fee test that the Supreme Court used in Fox v. Vice, 563 U.S. 826 (2011), a Title VII case where the prevailing defendant in a frivolous case could only recover the fees that it expended directly because of the plaintiff's behavior, which excluded the fees that the defendant expended in dealing with the plaintiff's good-faith behavior, and that "when a defendant would have incurred an expense in any event, he has suffered no incremental harm from the frivolous claim, and so the court lacks a basis for shifting the expense."

Justice Kagan writes that the lower courts in this case did not use the correct legal standard in setting the fine. While the district court dispensed with the correct standard because this was a "truly egregious case," and the Ninth Circuit said the trial court could grant all the attorneys' fees incurred "during the time when Goodyear was acting in bad faith," that does not take into account the surgical test the Supreme Court has previously articulated in sanctioning bad behavior. For one thing, the Supreme Court says, the plaintiffs cannot show that Goodyear's non-disclosure had so permeated the suit that Goodyear was on the hook for all the fees that the plaintiffs had incurred thereafter.

The Court does say that in exceptional circumstances, the but-for standard allows the trial court to shift all of a party's fees.

In exceptional cases, the but-for standard even permits a trial court to shift all of a party’s fees, from either the start or some midpoint of a suit, in one fell swoop. Cham­bers v. NASCO offers one illustration. There, we approved such an award because literally everything the defendant did—“his entire course of conduct” throughout, and indeed preceding, the litigation—was “part of a sordid scheme” to defeat a valid claim. Thus, the district court could reasonably conclude that all legal expenses in the suit “were caused . . . solely by [his] fraudulent and brazenly unethical efforts.” Or to flip the example: If a plaintiff initiates a case in complete bad faith, so that every cost of defense is at­tributable only to sanctioned behavior, the court may again make a blanket award.

Monday, May 1, 2017

Racist tirade by drunk Mayor is not a hostile work environment

Is it a hostile work environment when you boss makes racist comments off-duty? What about when he makes racist comments off-duty, but he is physically inside the workplace? The Court of Appeals resolved these issues in a case involving the Mayor of the Village of Moncticello.

The case is Johnstone v. Village of Monticello, a summary order decided on April 28. I argued the appeal. Johnstone is a white police officer who arrested the Mayor, Jenkins, who is black, for for driving while intoxicated. While Johnstone was processing the Mayor at the police station, Jenkins launched a racial tirade against Johnstone and other white officers. The video of this incident is at this link. Johnstone alleges -- but the Second Circuit ruling does not mention -- that Jenkins also threatened the employment of the white officers. Johnstone sued the Mayor and the Village for a racially hostile work environment.

The district court says Johnstone cannot win the case, and the Court of Appeals (Parker, Jacobs and Walker) agrees. The Court says that "one consideration is the frequency of the alleged abuse, his reliance on a single incident over the course of a nearly 30-year career weighs heavily against
him, although that alone is not dispositive. More significant is that an abusive tirade by a person arrested for driving under the influence is not sufficient "to alter the conditions" of Johnstone's employment. The Court reasons:

Jenkins's alleged comments were severe, but they were not made in the context of an employer addressing an employee in the workplace; they were made by an apparently intoxicated citizen who was belligerent because he was being taken into custody and processed for violating the law. Being subjected to an intoxicated and verbally abusive perpetrator does not alter the conditions of a police officer's employment or create an actionably hostile work environment, even if the person arrested happens to be the mayor.

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