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.

and MARCO MOROCHO, on behalf ofthemselves
and other employees similarly situated,



and JOHN DOES 1-100, the actual names ofsuch
individuals or entities being unknown,


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.


Dated: April 20, 2017
New York, New York

United States District Judge

Tuesday, April 25, 2017

Win some, lose some

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

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

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

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

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

Friday, April 21, 2017

Yeah, it's legal

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

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

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

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

Thursday, April 20, 2017

Misplaced chair no basis for prisoners' rights suit

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

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

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

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

Wednesday, April 19, 2017

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

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

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

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

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

Monday, April 17, 2017

Supremes rule for plaintiff in Fourth Amendment seizure case

The plaintiff in this case was pulled over for a traffic stop when the police found a bottle in his car containing pills. The police claimed it was drugs, but tests proved otherwise. Still, plaintiff spent 48 days in pretrial detention. He sues for false arrest. The case was dismissed as untimely. It was also dismissed because the court said you can't challenge your pretrial detention under the Fourth Amendment . The Supreme Court finds otherwise and rules in his favor.

The case is Manuel v. City of Joliet, decided by the Supreme Court on March 21. This constitutional case actually looks at our nation's founding document in the most technical manner possible. We start with the Fourth Amendment's protection against "unreasonable seizures." Is that 48-day detention a seizure? If it is, then Manuel can sue.

Writing for the Court, Justice Kagan notes that the Supreme Court said four decades ago that a claim challenging pretrial detention falls within the scope of the Fourth Amendment. Subsequent Supreme Court cases say that pretrial detention can violate the Fourth Amendment not only when it precedes but when it follows the start of legal process in the criminal case. Manuel's criminal case had already started he spent all that time in the slammer. Here is where the technicality comes in. Manuel has a case under the Fourth Amendment and not -- as the Seventh Circuit held -- under the Due Process Clause. Here is the analysis:

Pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause. That can happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong—when,for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements. Then, too, a person is confined without constitutionally adequate justification. Legal process has gone forward,but it has done nothing to satisfy the Fourth Amendment’s probable-cause requirement. And for that reason, it cannot extinguish the detainee’s Fourth Amendment claim—or somehow, as the Seventh Circuit has held, convert that claim into one founded on the Due Process Clause. If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment.
In other words, it was an unlawful seizure even after the criminal process began because there was no probable cause to detain Manuel. As Justice Kagan writes, "Legal process did not expunge Manuel’s Fourth Amendment claim because the process he received failed to establish what that Amendment makes essential for pretrial detention—probable cause to believe he committed a crime."

The remaining question involves the statute of limitations. The Supreme Court does not take up that issue, instead sending it back for the Seventh Circuit to worry about it. The Supreme Court does summarize the different points of view on this issue. If we treat Manuel's seizure like a malicious prosecution case, then his lawsuit is timely because the statute of limitations would begin on the day the charges were dismissed. But if we treat Manuel's case like a false arrest, then the statute of limitations began the day he was arrested, and this case is untimely.

Sunday, April 16, 2017

Circuit finds black-car drivers are not employees under the FLSA

A huge number of "black-car drivers" bring this Fair Labor Standards Act case against corporate entities that either own a "base license" that allows them to operate a black-car dispatch base in New York City or provide administrative support for the operation of the franchisor's dispatch bases. In other words, the drivers -- who operate a type of for-hire vehicles that provide ground transportation for people -- sue the defendants for unpaid wages. The issue here: did the defendants employ the plaintiffs under the FLSA and state law? The Court of Appeals says the defendants are not employers.

The case is Saleem v. Corporate Transportation Group, decided on April 12. Only employers are liable under the FLSA. If the plaintiffs are independent contractors, they cannot sue for lost wages under the Act. The plaintiffs' black-car franchises are affiliated with defendants, some of whom provide administrative support for the operations. The plaintiffs mostly purchased their franchises from the franchisor defendants, and the franchise agreement has a non-compete clause that prevents them from driving CTG customers without processing payment through CTG. But these agreements do not prevent the drivers from transporting non-CTG customers. While the franchise agreements come with a rule book governing standards of conduct, plaintiffs still enjoyed considerable autonomy in their day-to-day affairs, such as deciding when and how often to drive, where they worked and to accept or decline jobs that were offered. The drivers could also work for other entities.

This back-and forth with respect to driver autonomy and defendant control over them lies at the heart of this case. An employer under state and federal law is able to control the plaintiff. Without sufficient control over the plaintiff, the defendant is not an employer and the plaintiff is merely an independent contractor who cannot invoke the FLSA and state law wage protections. This is a totality of the circumstances test, and the facts are typically quite involved, so much that these decisions can be lengthy and complicated, as reflected in the 14 month time period the Court of Appeals (Livingston, Leval and Carney) took to issue this decision. The Court finds that plaintiffs were independent contractors.

Despite the broad sweep of the FLSA’s definition of “employee,” the record here does not permit the conclusion that Plaintiffs were employees, but instead establishes that they were in business for themselves. As discussed below, Plaintiffs independently determined (1) the manner and extent of their affiliation with CTG; (2) whether to work exclusively for CTG accounts or provide rides for CTG’s rivals’ clients and/or develop business of their own; (3) the degree to which they would invest in their driving businesses; and (4) when, where, and how regularly to provide rides for CTG clients. While none of these facts is determinative on its own, considered as a whole with the goal of discerning the underlying economic reality of the relationship here, the district court correctly determined that Plaintiffs are, as a matter of law, “properly classified as independent contractors rather than employees for purposes of the FLSA.” 

Wednesday, April 12, 2017

Are Rule 68 offers covered by Cheeks v. Pancake House?

Normally, parties settle lawsuits in private and tell the judge the case is over. The judge then "so orders" a stipulation of discontinuance, someone writes a check and we all move on with our lives. That does not apply to cases brought under the Fair Labor Standards Act. In 2015, the Second Circuit held that courts must approve FLSA settlements "to avoid the “potential for abuse,” including “highly restrictive confidentiality provisions in strong tension with the remedial purposes of the FLSA,” “overbroad release[s],” excessive attorney’s fee awards, and inadequate awards. Does this apply to settlements reached under Rule 68?

The case is Yu v. Hasaki Rest., Inc., No. 16-CV-6094 (JMF), 2017 U.S. Dist. LEXIS 54597 (S.D.N.Y. Apr. 10, 2017), a SDNY case decided on April 10. Under Rule 68, the defendant serves an Offer of Judgment on the plaintiff. That offer would pay the plaintiff a sum of money. The plaintiff has a limited time to accept that offer. If the plaintiff rejects the offer and wins less money at trial, then plaintiff has to pay the defendant's post-offer costs. Plaintiff also forfeits attorneys' fees incurred after the offer was sent. In return, the plaintiff gets money and a judgment against defendant.

In this case, Judge Furman holds that Rule 68 settlements are subject to the requirements set forth by the Second Circuit in Cheeks v. Freeport Pancake House, 796 F.3d 199, 200 (2d Cir. 2015), which says the courts must approve FLSA settlements. The judge writes:

In the wake of Cheeks, litigants have increasingly tried to evade the requirement for judicial or DOL approval by entering into settlements pursuant to Rule 68. These litigants have argued — as the parties do in this case — that approval is not required for such settlements because Rule 68 provides that “[t]he clerk must . . . enter judgment” of an accepted offer of judgment and lacks any language comparable to Rule 41’s “applicable federal statute” exception that figured prominently in Cheeks. Fed. R. Civ. P. 68.
Some courts in the Second Circuit say that Rule 68 settlements are not covered by Cheeks. Judge Furman sees it differently. While the judge notes that the clerk "must" enter judgment for the plaintiff upon accepting a Rule 68 offer, allowing parties to avoid Cheeks oversight makes no sense. He writes:

But that foundation — namely, that Rule 68 is, by its terms, mandatory and leaves no room for judicial scrutiny of an accepted offer — crumbles under closer scrutiny. That is, although it is sometimes said that a court “has no choice about entering” a Rule 68 judgment, “this general statement is too broad to encompass all instances in which Rule 68 offers are made.” 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3005 (2d ed. 1996)). Indeed, as one judge on the Eleventh Circuit observed, “[t]here are myriad settings in which a court has an independent duty . . . to review the terms of a settlement offer; Rule 68’s operation does not relieve the court of that duty.” Util. Automation 2000, Inc. v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238, 1250-51 (11th Cir. 2002) (Marcus, C.J., specially concurring). “[I]n the context of class actions,” for example, “Rule 68 offers of judgment are routinely employed despite the fact that all agreements must subsequently be approved by the court after a fairness hearing.” Gordon v. Gouline, 81 F.3d 235, 239 (D.C. Cir. 1996) (citing cases). And as the D.C. Circuit has held, in bankruptcy cases, Rule 68 does not override the requirement that compromises or settlements must be approved by the court. See id. at 239-40. In fact, there are a host of situations in which parties may not, without approval of either or both a government agency and a court, enter into a settlement.
For now, there is a split in the Second Circuit on this issue. The Court of Appeals will no doubt straighten this out some day. Until that happens, each Rule 68 settlement under the FLSA will be handled differently from judge to judge.

Monday, April 10, 2017

New York's credit card surcharge law implicates First Amendment

This is not the most exciting First Amendment case I've ever seen, but a First Amendment case it is. The Supreme Court says that

The case is Expressions Hair Design v. Schneiderman, decided on March 29. We examine credit card pricing in this case. New York makes it illegal for merchants to charge more money if customers want to use a credit card. The credit card companies charge a fee for the use of the cards, so merchants want to encourage customers to use cash. The plaintiffs are merchants who want to impose credit card surcharges. They also want to tell customers that it's not the merchant's fault that they have to raise prices to cover these surcharges. Hence, this First Amendment case.

The Second Circuit ruled against the plaintiffs, finding that this law does not restrict speech and that it instead merely regulates conduct in the form of price controls. The Supreme Court disagrees. The law regulates First Amendment speech because it tells merchants how they can communicate their prices. Chief Justice Roberts writes:

The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10,with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, §518 regulates speech.
The Court does not decide whether this law is constitutional. Now that the Court has found that the law regulates speech, the case is sent back to the Second Circuit to decide if the law is a valid speech regulation or whether it can be upheld as a valid disclosure requirement. The only direction for the Second Circuit is to treat this law as a speech regulation and decide whether it violates the First Amendment.

Wednesday, April 5, 2017

Sexual harassment victim is awarded $25,000 in damages

Employment discrimination cases are not always resolved in federal court. Some plaintiffs file complaints in the State Division of Human Rights and/or the Equal Employment Opportunity Commission, which can investigate and settle the complaints. The SDHR can hold an evidentiary hearing to get to the bottom of things. After someone wins or loses, the case then proceeds to state court.

The case is In the Matter of AMG Managing Partners v. New York State Division of Human Rights, an Appellate Division case issued on March 31. This case went to an SDHR hearing. The SDHR found in favor of the complainant, who alleged she was sexually harassed in violation of the state human rights law. The SDHR awarded her $65,000 in damages for pain and suffering, It also fined the individual defendants $15,000 and ordered him to attend an unlawful discrimination training seminar. The plaintiff also won $5,720 in lost wages arising from her forced resignation, what lawyers call "constructive discharge."

The Fourth Department upholds the finding that the complainant was sexually harassed. Unfortunately, the decision tells us nothing about what actually happened in the workplace, which is one reason why we have few state court decisions that fully outline what harassment is actionable under state law. But we do know that the SDHR awarded the victim $65,000 for pain and suffering. The Fourth Department thinks that amount is too high, and it reduces the award to $25,000. From my experience, the reduced amount is more in line with SDHR practices. The agency does not award the high damages that you'll see in federal court with a jury.

The appellate court notes that plaintiff was not required to corroborate her pain and suffering claims. "In challenging the award for mental anguish and humiliation, petitioners rely heavily on the fact that complainant failed to submit documentary evidence to corroborate her testimony that she sought counseling 33 times in the four months following her constructive discharge. Contrary to petitioners’ contention, such testimony does not require corroboration inasmuch as proof of mental anguish 'may be established through the testimony of the complainant alone.' This is a common defense argument, that the pain and suffering is subjective and cannot be objectively measured. But this case reminds us that plaintiff's testimony on this issue is enough.

What makes this case interesting is that the employer challenged the sexual harassment findings by arguing that the plaintiff was not really harassed because she "may have used sexually inappropriate language or engaged in sexually inappropriate conduct with a longtime person friend who worked in the same office." In other words, the plaintiff was not subjectively offended by the harassment. This defense is not going to cut it these days. People are allowed to have a private life. The Fourth Department cites a Fourth Circuit case from 1987, Swentek v. USAir, Inc., 830 F.2d 552 (4th Cir. 1987), for the proposition that a plaintiff's "use of foul language or sexual innuendo in a consensual setting does not waive her legal protections against unwelcome harassment." There must be few cases on this issue in our jurisdiction, though the Fourth Department also cites a case from the Southern District of New York, Danna v. NY Telephone Co., 752 F. Supp. 594 (SDNY 1991), for this proposition.

Tuesday, April 4, 2017

Seventh Circuit rules that sexual orientation discrimination violates Title VII

A federal appeals court in Chicago has ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation. The Seventh Circuit is the first Circuit court to rule this way, reasoning that Title VII's prohibition against sex discrimination also protects gays and lesbians from hostile employment decisions based on their sexual orientation.

The case is Hively v. Ivy Tech Community College, decided on April 4. Hively is a lesbian who worked for the College. After the College declined to renew Hively's employment, she sued under Title VII. The Seventh Circuit originally ruled against her, but the en banc court overturns Circuit precedent in ruling for Hively, adopting the EEOC's view that sexual orientation discrimination violates Title VII.

The Seventh Circuit opens its analysis by noting it has authority to take up this question. "The question before us is not whether this court can, or should, 'amend' Title VII to add a new protected category to the familiar list of 'race, color, religion, sex, or national origin.' 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence."

This language about the Court's capacity to take up this issue may not seem a remarkable proposition, but there was a time when courts had outright rejected the position that Title VII prohibits sexual orientation discrimination. But the world has changed, and the landscape governing the rights of gays and lesbians -- including the Supreme Court's ruling on same-sex marriage and intimate sexual endeavors -- makes this analysis of Title VII a logical next step. This dovetails with the Seventh Circuit's tutorial on statutory interpretation, noting that Title VII prohibits today what no one had anticipated in 1964, including sexual harassment, same-sex workplace harassment, as well as discrimination based on sexual stereotypes.

The Court summarizes Hively's position: "Hively offers two approaches in support of her contention that “sex discrimination” includes discrimination on the basis of sexual orientation. The first relies on the tried-and-true comparative method in which we attempt to isolate the significance of the plaintiff’s sex to the employer’s decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way? The second relies on the Loving v. Virginia, 388 U.S. 1 (1967), line of cases, which she argues protect her right to associate intimately with a person of the same sex. Although the analysis differs somewhat, both avenues end up in the same place: sex discrimination."

On the pure discrimination angle, the Seventh Circuit reasons it this way:

Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. (We take the facts in the light most favorable to her, because we are here on a Rule 12(b)(6) dismissal; naturally nothing we say will prevent Ivy Tech from contesting these points in later proceedings.) This describes paradigmatic sex discrimination.
The Circuit adds:

Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).
 The Seventh Circuit further holds that sexual orientation discrimination punishes people based on whom they associate with. In 1967, the Supreme Court made it illegal to prevent interracial marriages. Both parties to an interracial marriage suffered discrimination because of their race, the Circuit notes. That case was Loving v. Virginia. The Seventh also notes that the Second Circuit held in 2008 that it was unlawful for an employer to backstab an employee based on the race of his fiance. That's the Holcomb decision. The Seventh Circuit has utilized similar reasoning in the past. It finds now that the associational discrimination theory makes sense. "If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex."

Judge Posner writes an interesting concurrence, taking a potshot at the recent sexual harassment scandal at Fox News. Three judges dissent.

As Second Circuit watchers know, the NY-based Circuit court recently decided against adopting the EEOC's position on sexual orientation discrimination and stood firm on a 1990 Second Circuit precedent that said discrimination against gays and lesbians does not violate Title VII. Two judges on that panel suggested the Court might someday consider adopting the EEOC's position. The plaintiff in that case won the appeal in any event because he did not conform to gender stereotypes, still the traditional way to win a Title VII case. Several cases are now pending in the Second Circuit that raise this issue, including the Zarda case, argued on January 5, 2017.

Friday, March 31, 2017

Close but no cigar

Not every bad arrest gives you a lawsuit against the police. Sometimes, the charges are dismissed, and there is no recourse against the police. That's what happened here.

The case is Arroyo v. City of New York, a summary order decided on March 21. The summary order does not tell us everything about the case, but the district court ruling describes a place of residence in New York City where a mother lived with her daughter. The plaintiff-daughter is paraplegic. The mother was sitting in a room by herself. Someone called the police to complain about possible elder abuse at the home, and according to defendants, the caller who made the report was an employee from a visiting nurse service, who stated that the daughter in the household was bipolar and kept a sword under her mattress.

The police showed up and found a gun in the apartment. They also removed plaintiff from the home because they thought she was a danger to herself and others. The Mental Health Law authorizes these seizures. The criminal court suppressed the gun as the fruit of an unlawful search, and from what I can see, the hospital said the was not a danger to anyone.

The police are off the hook under qualified immunity, which shields them from suit if they had arguable probable cause. This is not a difficult standard for the police to satisfy. On the mental health claim, the Court (Cabranes, Wesley and Sessions [D.J.]) says:

the Officers had arguable probable cause to remove Arroyo from her home pursuant to MHL § 9.41. Under MHL § 9.41, a police officer “may take into custody any person who appears to be mentally ill and is conducting . . . herself in a manner which is likely to result in serious harm to the person or others.” As the District Court noted, the Officers (1) received a 911 call from an identified caller reporting possible elder abuse and stating that Arroyo was bipolar; (2) spoke with an identified source (the supervisor of Arroyo’s mother’s home attendant) with knowledge of Arroyo’s conduct who indicated that Arroyo was threatening to her mother and kept a gun at home;1 (3) observed Arroyo acting in an erratic and unresponsive manner; and (4) spoke to Arroyo’s mother, who expressed that she was not permitted to leave her bedroom. With these facts taken together, a reasonable officer could have found that probable cause existed to remove Arroyo to a hospital under MHL § 9.41.
On the gun claim, we have a similar analysis."At the time she was arrested, the Officers had heard from the supervisor of Arroyo’s mother’s home attendant that Arroyo kept a gun at home, and Officer Vega had discovered a gun in Arroyo’s purse. The fact that the gun was later suppressed does not preclude a determination that there was arguable probable cause for the arrest." For this proposition, the Court cites, Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999): “Victims of unreasonable searches or seizures . . . cannot be compensated [under § 1983] for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution.”

So while the plaintiff was innocent, the police were close enough in thinking she was guilty that they cannot be sued for false arrest. The "close but no cigar" rule may work in some areas of life, but not false arrest. Close enough means no lawsuit.

Thursday, March 30, 2017

Plaintiffs: don't forget to plead those City law claims.

For years, courts did not accept that Title VII and other federal civil rights statutes had to be interpreted differently from the more expansive New York City Human Rights Law. It got so bad that the City Council in 2005 and again in 2016 had to reaffirm that courts must analyze claims differently under the city law. The courts are getting the hang of it, as shown by this discrimination case that the Second Circuit resolved this week.

The case is Alvarado v. Nordstrom, a summary order decided on March 29. Plaintiff worked as a salesman specializing in high-end fashion. His deteriorating relationship with co-workers led to this lawsuit. He sued management for racial and sexual orientation discrimination, and retaliation. Here is what the Court of Appeals (Katzmann, Pooler and Lynch) did:

1. There is no hostile work environment claim because plaintiff only cites three comments by three co-workers over the course of about one year. In once instance, co-workers Daniel and Dalrymple said Alvarado would cook arroz con polio, a reference to his heritage. Another employee called plaintiff a "little bitch." Dalrymple also told another co-worker that he needed to "choose sides between the real girls and the queens." Other statements in the record show that Daniel called plaintiff a "miserable motherfucker." None of these statements, by themselves, are enough to create a hostile work environment, and in their totality, they are not enough because some of the offenders did not engage in further abusive treatment and, unlike other cases where courts have found a hostile environment, the offensive comments were not made by the same person. The court reaches the same result on the city law harassment claim.

2. Plaintiff also raises retaliation claims under federal and city law. Here is where the analysis diverges. After plaintiff complained about discrimination, he received a written reprimand. Even if the reprimand is an adverse action, it was not a pretext for retaliation under federal and state law, which are interpreted identically. The Second Circuit rejects plaintiff's argument that a comparable co-worker, Daniel, did not receive a reprimand for various acts of workplace misconduct. This is because the co-worker did not engage in comparable bad acts. The Court reasons:

Alvarado points to numerous instances of small acts of insubordination by Daniel, but he does not point to any evidence that would suggest any of these instances involved shouting or aggression towards a manager on the salesfloor comparable to Alvarado’s incident with Gonzales. The most similar instance, which is Daniel’s interaction with Cara Smyth, Jeffrey’s customer service manager, involved Daniel muttering something under her breath about Smyth while on the salesfloor and then denying that she had said anything. While there is little doubt that Daniel engaged in insubordinate conduct numerous times in the past, Gonzales described Alvarado as being “aggressive, assertive, dismissive[,] and insubordinate” towards Gonzales during their altercation on the Jeffrey salesfloor, and alleged that Alvarado put his thumb in Gonzales’s face. We conclude that Alvarado cannot rely on allegations of disparate treatment to support his retaliation claim because he has failed to show that he and Daniel are sufficient comparators when it comes to their actions of insubordination under the causation standard applicable to Section 1981 and NYSHRL claims.
3. The city law retaliation claim is a different story. Here is the standard for city law retaliation claims:

In order to succeed on a NYCHRL retaliation claim, a plaintiff “must show that []he took
an action opposing h[is] employer’s discrimination and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” “[N]o challenged conduct may be deemed nonretaliatory unless a jury could not reasonably conclude from the evidence that such conduct was reasonably likely to deter a person from engaging in protected activity.” “This assessment should be made with a keen sense of workplace realities, of the fact that the chilling effect of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct.” Under this standard, “summary judgment is [only] appropriate if the record establishes as a matter of law that . . . retaliation played no role in the defendant’s actions.”
Under the more lenient city law test that allows retaliation claims to proceed to trial if retaliation plays some role in the adverse action, plaintiff has a claim, and the district court ruling on this issue is reversed. To be clear, there is a retaliation case if retaliation plays "some" role. Under federal law, including Section 1981, you have to prove that retaliation was the "but for" cause of the adverse action, which is why plaintiff's retaliation claims under Section 1981 and state law were dismissed. There's a big difference between "some" motivation and "but for" motivation." The reasoning follows:

we hold that the question of whether Daniel was a sufficiently close comparator to Alvarado such that their disparate treatment would show Alvarado’s 2012 written reprimand was pretextual is more appropriately one for a fact finder. In reviewing the realities of the Jeffrey’s workplace as shown by the evidence presented at summary judgment, written reprimands seem to have been infrequently given even for bad behavior in public. ... Even though written reprimands were rarely given, and Daniel had engaged in numerous instances of minor insubordinations and other combative behavior vis-à-vis her co-workers for which she had received few written reprimands, Alvarado immediately received a written reprimand for his single act of insubordination towards
Gonzales. Viewing the facts pled in the light most favorable to Alvarado and under the
NYCHRL standard that summary judgment is only appropriate when retaliation plays no role in an adverse employment action as a matter of law, we hold that there exists a question of fact for a jury to determine as to whether retaliation played some role in Alvarado’s written reprimand.

Wednesday, March 29, 2017

No First Amendment rights for private, for-profit law firms

The Court of Appeals has ruled that a for-profit law firm cannot bring a First Amendment challenge to New York's ethical rules that prohibit law firms from partnering with non-lawyers. While the law firm claimed a right to associate with its clients through additional outside funding that would enhance its legal services, the Second Circuit holds that no such First Amendment or associational rights exist for the law firm.

The case is Jacoby & Meyers, LLP v. The Presiding Justices of the First, Second, Third and Fourth Departments, decided on March 24. J&M wants to partner with investors whose additional capital would allow the firm to improve the quality of its legal services, reduce its fees and overall expand its ability to serve its clients. New York ethical rules, however, prohibit lawyers from partnering with -- and taking investment money from -- non-lawyers, on the theory that such partnerships would reduce attorney independence and eliminate incentives for lawyers to put their clients' interests first.

As a side-note, astute readers will recall that J&M rode the first wave of television advertising in the 1970s after the Supreme Court ruled that regulations prohibiting attorney advertising violated the First Amendment. Those of us who wasted the best years of our lives sitting in front of the television will forever recall J&M's slogan, "It's about time." Now J&M brings a constitutional challenge of its own, but the Court of Appeals rejects it.

The Second Circuit (Carney, Lynch and Hellerstein [D.J.]) runs through when law firms have rights under the First Amendment. Those rights are far and few. The Constitution does recognize a right to association under the First Amendment. As the Circuit tells us, "one line of cases involving political advocacy organizations relies on the expressive value of certain types of association litigation," such as NAACP v. Button, a Supreme Court case from 1963, involving a political advocacy organization that promotes anti-segregation. The ACLU also enjoys these associational rights, under In re Primus, a Supreme Court ruling from 1978. Yet another line of cases "recognizes that clients seeking legal representation -- specifically in the context of union activity -- have a right protected by the First Amendment to associate with each other to obtain legal representation and vindicate their rights effectively." That case was Bhd. of RR Trainmen v. Virginia, a Supreme Court ruling from 1964. The collective activity in that litigation allows people "meaningful access to the courts."

Constitutionally speaking, J&M is not the NAACP or the ACLU because its mission does not fall within that narrow line of cases. It is not engaged in political advocacy or expression. "Clients have First Amendment expressive rights for which litigation may provide a vehicle. When the lawyers' own expressive interests align with those rights, the lawyers themselves may have a cognizable First Amendment interest in pursuing the litigation. We are not aware of any judicial recognition of such an interest, however, when it comes to the lawyer's generic act of pursuing litigation on behalf of any client." 

Monday, March 27, 2017

Gay male wins gender stereotyping appeal under Title VII

The Court of Appeals has reinstated a Title VII claim alleging that a gay plaintiff was treated differently because he failed to conform to gender stereotypes. Despite growing interest in this issue and a slew of amicus briefs, the Court expressly declines to find whether sexual orientation discrimination equals sex discrimination under Title VII. Instead, it finds for the plaintiff under the more traditional gender-stereotyping theory.

The case is Christianson v. Omnicom Group, decided on March 27. The facts are the sort you would expect from a workplace filled with people who never graduated from the adolescent world of the male locker room. Plaintiff's supervisor drew sexually-explicit pictures on office whiteboards, Facebook and other places, depicting plaintiff in unflattering, effeminate and sexual poses that made fun of his sexual orientation. This is the world we live in folks, as society continues to devolve in ways that should be apparent to anyone who reads a newspaper. The question is whether this behavior violates Title VII.

Title VII says nothing about sexual orientation. But federal courts lately have been determining whether the sex discrimination provision includes sexual orientation discrimination. The EEOC a few years ago answered that question in the affirmative, and district courts around the country have followed suit. The Seventh Circuit is taking up that issue en banc, and at least three cases remain pending in the Second Circuit on this issue.

Some compelling reasons support the finding that Title VII prohibits sexual orientation discrimination. This discrimination punishes people based on their associations, and since associational discrimination (punishing a while male because of his black fiance, for example) can violate Title VII, the theory goes, it is unlawful to discriminate against gay men because they associate with gay men. Sexual orientation discrimination is also regarded as a form of gender stereotyping, as traditional sex roles assume that men are attracted to men and women are attracted to women. But the Court of Appeals does not take that road in this case, noting that it held seventeen years ago in Simonton v. Runyon (and 12 years ago in Dawson v. Bumble & Bumble) that gays and lesbians are not a protected class under Title VII. Since panel decisions of the Second Circuit are normally not vacated unless the Supreme Court weighs in on the issue or the Circuit hears the issue en banc, the Court of Appeals declines to revisit Simonton and instead finds for the plaintiff under the gender stereotyping theory, a claim that the Supreme Court recognized in the Price Waterhouse decision nearly 30 years ago, albeit in the context of a professional woman who was regarded as insufficiently feminine. The Second Circuit says, "gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals. Simonton and Dawson merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim."

On this Rule 12 motion, plaintiff makes out a gender stereotyping claim because "Christiansen alleges that he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons. Furthermore, the harassment to which he was subjected, particularly the 'Muscle Beach Party' poster, is alleged to have specifically invoked these “stereotypically feminine” traits." The district court's contrary ruling is therefore reversed, and this case heads to discovery.

What makes this case particularly interesting is that two of the three judges on the case issue a concurring opinion. The panel is Judges Livingston, Katzmann and Brodie [D.J.]. But Katzmann and Brodie alone sign off on the concurrence. Which is strange because two judges constitute a majority. Obviously, Judge Livingston wanted no part of the concurrence, which expresses the hope that "when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued." That changed legal landscape now recognizes same-sex marriage rights and privacy rights for same-sex couples, as recognized by the Supreme Court, and the fact that "societal understanding of same-sex relationships has evolved considerably" over the years. The concurrence further adopts the EEOC's view that sexual orientation discrimination does in fact constitute gender discrimination because, in part, that discrimination punishes people because of their intimate associates and reinforces gender stereotypes.

Three other cases are pending in the Second Circuit on the issue of whether sexual orientation discrimination violates Title VII. One case was already argued. One of these days, I am sure, the Court of Appeals is going to squarely take on this issue. It will then almost certainly go to the Supreme Court. 

Sunday, March 26, 2017

No Title VII claim for professor who insulted his students

In this Title VII case, the plaintiff was teaching for New York Institute of Technology at its Bahrain campus. Plaintiff is a white, non-Muslim. He was let go after making comments that his students deemed anti-Islamic and offensive. The Court of Appeals says plaintiff has no case.

The case is Balk v. New York Institute of Technology, a summary order decided on March 23. One day, plaintiff met with students who were going to visit New York City. During that meeting, the students complained, plaintiff "gave examples about democracy that insults our religious beliefs and as a professor he should realize that the words he said about our Prophet Mohammed peace be upon him are very sensitive and will never be the definition of democracy." Plaintiff testified that he did admonish the students that "when they go to the west to be able to understand why people might feel uncomfortable with them." He also described a "hypothetical walk down the street where you would pass a mosque or a church, I remember thinking maybe it was Episcopalian where there was a gay congregation and you might see within that church their iconography, their words on the wall where prophets and Gods would be gay."

Plaintiff then began to fear for his safety and moved to Jordan, aware that he was under criticism in that part of the world. The college, meanwhile, decided that plaintiff could not return to Bahrain to teach. The college then declined to renew his contract or offer him a job at its other campuses.

The Court of Appeals (Chin, Lohier and McMahon [D.J.]) agrees with the district court plaintiff has no discrimination case. Plaintiff claims he was fired by deferring to the discriminatory animus of its Muslim students and its faculty members." Such a theory of discrimination exists, but it does not work here, the Court of Appeals says, because the college had good reason to end the employment relationship: he was removed from the Bahrain campus because the college thought it was unsafe for him to remain there and there was no other positions available for him at NYIT. The Court reasons:

Balk himself expressed concern about his safety. Whether there was a basis for their accusations or not, students complained that Balk had used words with them that were ʺextremely rude, humiliating, disrespectful and full of clear racism.ʺ Balk acknowledged using words that some certainly could have found offensive. Again, whether they were accurate or not, articles were published reporting that a professor at a private university had engaged in blasphemous conduct, and Balk acknowledges that, although he was not named, he was widely believed to be the professor in question. As a reasonable jury could only find, these circumstances created an unsafe environment for Balk.

Friday, March 24, 2017

Supreme Court outlines test for judging IEP's in student disability cases

Student disability claims brought under the Individuals with Disabilities Education Act (IDEA) are quite common. Generally speaking, disabled students are entitled to an Individualized Education Plan (IEP) that outlines personalized educational goals for the student. If the parents don't like the IEP and challenge it at a due process hearing, they can recover reimbursement from the school district for the costs of sending the child to a private school. The question is this: how do we know the IEP satisfies the IDEA? The Supreme Court clarifies that question.

The case is Endrew F. v. Douglas County School Dist., decided on March 22. As usual, the IDEA does not provide much guidance on this issue. Congress likes to leave the statutory language vague and allow the courts to deal with its meaning. In this instance, the Supreme Court in 1982 said that the IEP should be "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." That was the Rowley case. The Court in Rowley declined "to establish any one test for determining the adequacy of educational benefits conferred upon all children."

Post-Rowley, the federal courts have applied different standards governing the adequacy of IEP's. The Second Circuit said in 2008 that "a state need not maximize the potential of handicapped children, but the door of public education must be opened in a meaningful way, and the IEP must provide the opportunity for more than only trivial advancement." That sounds like a low bar. In the Endrew F. case, the Tenth Circuit had a similar test: the IEP must provide "some educational benefit" and the IEP is adequate if it confers an "educational benefit that is merely ... more than de minimis."

A unanimous Supreme Court rejects this "good enough" test and says the IEP must provide an "educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." This test will not be easy to apply, as the IEP will depend on the individual student, and all students are different. As Chief Justice Roberts says, "the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule, however, should not be mistaken for an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." In other words, school officials are still entitled to some deference in preparing IEP's.

Thursday, March 23, 2017

Circuit rejects six-figure disability discrimination verdict

This disability discrimination plaintiff won his trial in the Northern District of New York after his employer fired him because he had a needle phobia that made it impossible for him to give customers a flu shot on demand. The Court of Appeals has vacated the verdict, and the employer wins.

The case is Stevens v. Rite Aid Corp., decided on March 21. Plaintiff was a longtime pharmacist for Rite Aid for over 30 years. In 2011, Rite Aid decided to provide flu shots for its customers. Plaintiff was unable to immunize customers because he has a needle phobia, confirmed by his doctor. He was fired because of this. At trial, a sympathetic jury awarded plaintiff $485,000 in back pay, $1.2 million in front pay and $900,000 for pain and suffering. His lawyers got close to $400,000 in attorneys' fees. It is all gone. Here is what the Court of Appeals (Newman, Lynch and Droney) did:

1. Giving these vaccination shots was an essential part of plaintiff's job duties. That means he is not qualified to work as a pharmacist at Rite Aid unless he can perform that duty with or without a reasonable accommodation. While plaintiff argued this task was not an essential job requirement, the Court of Appeals disagrees and says no reasonable jury could find otherwise, since Rite Aid personnel testified without contradiction "that the company made a business decision to start requiring pharmacists to perform immunizations in 2011." The job description was revised to reflect this, and the company in fact had fired another pharmacist who had failed to undergo the immunization training program.

2. Plaintiff could still win the case with proof that the company could have reasonably accommodated his disability. The Court of Appeals emphasizes that "the issue is whether a reasonable accommodation would have enabled him to perform that essential function, not whether, as some of Stevens' arguments appear to suggest, he could perform his other duties as a pharmacist." The Court adds that "A reasonable accommodation can never involve the elimination of an essential function of a job." The Court finds there was no reasonable accommodation, rejecting plaintiff's claim that the company could have offered him desensitization therapy. District courts in this Circuit have ruled -- and the Second Circuit now holds -- that the employer is not required to provide this treatment as a reasonable accommodation. The Court also rejects plaintiff's argument that he could have been transferred to a pharmacy technician position; the record shows that Rite Aid offered plaintiff another position (including that one) that would not require flu shots "and Stevens offered no evidence that he requested, considered, or was open to a position as a pharmacy technician." The Court further rejects plaintiff's claim that the company could have hired a nurse to give the flu shots or sent him to a dual-pharmacist location where another pharmacist could have immunized people. The Court reasons that "those steps would be exemptions that would have involved other employees performing Stevens' essential immunization duties. Rite Aid was not required to grant Stevens these exemptions."Plaintiff also failed to prove that a vacant position at a dual=pharmacist store existed at the time of his termination."

This case has a strange twist. It was Rite Aid that appealed the verdict. Plaintiff cross-appealed. That is because the district court had actually thrown out the reasonable accommodation verdict in a post-trial motion before the case even reached the Second Circuit. Plaintiff appealed from that ruling. But the trial court let stand the wrongful discharge verdict in plaintiff's favor, which is the claim that led to the large damages award. Rite Aid appealed from that particular ruling. The Second Circuit in a footnote says that the failure to prove his reasonable accommodation claim means there cannot be a wrongful discharge claim. In other words, since plaintiff could not perform an essential job function, the company had the right to fire him.

The trial court, then, sustained the wrongful discharge verdict incorrectly. It did this by splitting the baby. It said that while plaintiff could not prove his reasonable accommodation claim, he was still fired because of his disability because plaintiff proved at trial that another pharmacist with needle-phobia was fired after he refused to attend immunization training. The trial court held, "while this pharmacist did not claim to have trypanophobia or make a claim under the ADA, the jury could reasonably have concluded that Rite Aid's decision to termination both pharmacists was because of their respective needle phobias." The trial court further held that plaintiff had a legitimate retaliation claim under the ADA because "evidence was sufficient for the jury to reasonably conclude that there was a causal connection between Plaintiff's protected activity of requesting an accommodation and his discharge." The Second Circuit does not address the wrongful discharge/retaliation reasoning at all. It assumes that if plaintiff cannot perform an essential job duty, there can be no wrongful discharge/retaliation claim.

Wednesday, March 15, 2017

Case not mooted by generous Rule 68 offer

Rule 68 of the Federal Rules of Civil Procedure is a tricky rule that plaintiffs' lawyers have to learn quickly when defendants' counsel serves a Rule 68 offer. Under Rule 68, the defendant offers a judgment to plaintiff for a sum of money. If the plaintiff rejects that amount and then recovers a lesser amount at trial, then plaintiff has to pay the costs that defendant incurred after the Rule 68 offer was served. That does not mean the plaintiff pays out the defendant's attorneys fees. But it does mean that if the case is brought under a fee-shifting statute, such as Title VII or Section 1983, the plaintiff does not recover her attorneys' fees post-Rule 68 offer. This case asks what happens when the defendant offers plaintiff an amount of money that would provide everything that plaintiff was asking for in filing the lawsuit. Does that offer moot out the case?

The case is Geismann v. ZocDoc, decided on March 9. Plaintiff sued ZocDoc under the law that makes it illegal to send out unsolicited faxes, the Telephone Consumer Protection Act. This was brought on as a putative class action, so defendant tried to nip the class action in the bud by offering plaintiff enough money to make the case go away. The Rule 68 offer would give plaintiff $6,100, which is what the plaintiff was suing for. Defendant also deposited the full amount of the plaintiff's claim in an account payable to plaintiff.

Rule 68 offers are only good for 14 days. After that, under the rule, the offer is "withdrawn." In this case, the plaintiff rejected the Rule 68 offer, prompting defendant to argue that the case was now moot. What is the point of proceeding with the case if the defendant offered plaintiff the amount of money to which is entitled, making him whole?

The district court accepted defendant's argument, but the Second Circuit (Sack, Hall and Carney) reverses and reinstates the case, 1.5 years after the case was argued. While this appeal was pending, the Supreme Court took up the same issue, ruling that since the Rule 68 offer is withdrawn once plaintiff rejects it, the case is not moot and the plaintiff may proceed with the lawsuit. That case, Campbell-Ewald, said that because "an unaccepted settlement offer -- like unaccepted contract offer -- is a legal nullity, with no operative effect. ... With no settlement offer still operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset."

In our system, the Supreme Court tells the Circuit courts what to do. The Second Circuit notes that the district court's ruling in this case was understandable. But that was before the Supreme Court handed down Campbell-Ewald. On the basis of that case, Geismann's case is reinstated, and he and his class-action plaintiffs can sue ZocDoc over the annoying faxes that come in that nobody asked for.

Monday, March 13, 2017

Bus drivers behaving badly

One way to win your employment discrimination case is to prove that you were fired for doing what everyone else was doing, and that the only distinction between you and everyone else is your gender, race, religion, age or disability. That's how this pro se litigant won his appeal in the Second Circuit.

The case is Carris v. First Student, Inc., a summary order decided on March 8. Plaintiff was a school bus driver. She visited a student's home after the student hit and spit on other students on the bus, causing chaos when Plaintiff was trying to drive kids to and/or from school. The decision is not clear how Plaintiff had violated company policy, but she was fired over this.

Under normal circumstances, Plaintiff would have no legal recourse over her termination, even if her termination was unjust. As every human resources professional knows, New York is an "at-will" employment state, which means that most terminations are unreviewable in court. But Plaintiff alleges that other bus drivers did bad things also. The complaint alleges that three white bus drivers who also violated policies concerning student safety were only placed on administrative leave and not fired. The Court of Appeals (Katzmann, Lynch and Chin) says we need some discovery to see if the other drivers' violations were comparably serious to that of Plaintiff, particularly since two of the white bus drivers left sleeping children on buses and one did not report it in hopes that no one would find out about it. The other bus driver, the complaint alleges, "deposited a kindergarten student at an unauthorized stop in the dark, leaving the child at least six minutes away by foot from his home."

In dismissing this case, the district court reasoned as follows:

this is not a case in which Plaintiff points to a white co-worker who was not fired after engaging in conduct that, while unknown, reasonably appears to have been comparable to the conduct in which Plaintiff engaged. Rather, this is a case in which Plaintiff points to three white co-workers who were not fired after engaging in specifically identified conduct that clearly was of less seriousness than that of Plaintiff. Simply stated, the Court cannot find that a bus driver who accidentally dropped a child off at an unauthorized stop (a mere six-minute walk from the child's authorized stop) while on-duty or accidentally fails to sufficiently check a school bus for sleeping children while on-duty (offenses of omission) is comparable to a bus driver who deliberately goes to a student's home while off-duty (an offense of commission), or at least sufficiently comparable to indicate discriminatory intent by Defendant as a result of disparate treatment.

The district court had adopted the employer's argument that Plaintiff's case is different from the other cases because Plaintiff acted intentionally and the others were only negligent. This would seem a decent argument, based on what I know about Second Circuit case law. But the Court of Appeals says "further factual development is needed to aid in the determination of whether Carris was similarly situated to white comparators who received more lenient punishment than she did." For now, she satisfies the lenient pleading standards under Title VII, as set forth in Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015).

Tuesday, March 7, 2017

Racist comments during jury deliberations denied defendant a fair trial

The Supreme Court has ruled that criminal defendants are denied a fair trial if jurors articulate racial stereotypes or discrimination during deliberations. This is one of the few cases where the Court will allow jurors to impeach their own verdict.

The case is Pena-Rodriguez v. Colorado, decided on March 6. The rule that jurors generally cannot impeach their own verdict is as old as the hills. It goes back to the pre-American revolution days. The theory is that jurors should be able to freely discuss the case among themselves without disgruntled litigants harassing them post-trial looking for a reason to argue that the jurors did not know what they were doing or did not deliberate properly. In this case, the Supreme Court traces the history of the no-impeachment rule, noting that Congress codified it in enacting the Federal Rules of Evidence in the mid-1970s. But apart from the values promoted by the no-impeachment rule, we also have to apply the Fourteenth Amendment, which prohibits racial discrimination in the criminal justice system (and in all other government programs). Writing for the 5-3 majority (Roberts, Thomas and Alito dissent), Justice Kennedy notes that "This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system."

In this case, the defendant was charged with sex offenses. During deliberations, one of the jurors had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness. In particular, he said "'I think he did it because he’s Mexican and Mexican men take whatever they want.’ According to the jurors, H. C. further explained that, in his experience,'nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.' Finally, the jurors recounted that Juror H. C. said that he did not find petitioner’s alibi witness credible because, among other things, the witness was ‘an illegal.’” The defendant's lawyers found out about these comments and brought it to the judge's attention.

The Supreme Court has shied away from reopening cases based on juror craziness, but it will not tolerate racism in the jury room. Here is the rule laid down by the Justices:

The Court now holds that where a juror makes a clear statement that indicate she or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.

Monday, March 6, 2017

Supreme Court puts an end to futility-creep

The Individuals with Disabilities in Education Act is a comprehensive federal law that regulates the rights of disabled children in public schools. In a nutshell, it allows learning-disabled and other disabled children to have a Free Appropriate Public Education (FAPE), normally effected through an Individualized Education Plan (IEP) that the school district has to create with input from the parents. If the parents don't like the IEP, they can ask for an impartial hearing and then take their grievance to state educational authorities. The question raised by this Supreme Court case is when must parents exhaust that remedy in cases involving disabled children before they can sue in federal court.

The case is Fry v. Napoleon Public Schools, decided by the Supreme Court on February 22. This case acquaints us with the boring but important topic of "futility." This legal principle says that you have to exhaust, or complete, certain state procedural remedies before you can file the lawsuit in federal court. In the IDEA context, that means you have to ask the New York State Commissioner of Education to rule on the propriety of the IEP before you can bring a federal lawsuit that challenges the legality of the IEP. That lengthy process would take months and months, and then the Commissioner's findings are entitled to some deference.

Yet, over the years, this led to exhaustion creep, sort of like surburban sprawl, or schedule creep, where part-timers slowly gain more job responsibilities and have to put in more and more hours. Futility creep led to cases in New York that essentially said that any lawsuit involving a disabled schoolchild has to first run through the state educational bureaucracy, even if the case did not involve an IEP but instead involved, i.e., the use of a service dog or peer-to-peer bullying. This reason this matters is that other federal statutes also protect disabled schoolchildren, including the Americans with Disabilities Act and the Rehabilitation Act, which deal with access to public institutions.

The Supreme Court takes up this issue, unanimously finding that the exhaustion creep has gone too far. Justice Kagan -- who is going out of her way to write as casually as possible, it seems -- says that IDEA exhaustion only applies when the dispute concerns a FAPE. Since lawyers sometimes want to file in federal court without wasting their time in the state educational bureaucracy, courts are on the lookout for artful pleading intended to show the case is not really a FAPE case but some other federal dispute. Justice Kagan says that one way to determine whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions:

First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.

Take two contrasting examples. Suppose first that a wheelchair-bound child sues his school for discrimination under Title II (again, without mentioning the denial of a FAPE) because the building lacks access ramps. In some sense, that architectural feature has educational consequences, and a different lawsuit might have alleged that it violates the IDEA: After all, if the child cannot get insidethe school, he cannot receive instruction there; and if he must be carried inside, he may not achieve the sense of independence conducive to academic (or later to real-world) success. But is the denial of a FAPE really thegravamen of the plaintiff ’s Title II complaint? Consider that the child could file the same basic complaint if a municipal library or theater had no ramps. And similarly,an employee or visitor could bring a mostly identical complaint against the school. That the claim can stay the same in those alternative scenarios suggests that its essence is equality of access to public facilities, not adequacy of special education.
This case changes the landscape for litigation against school districts involving disabled students. Over the next few years, lawyers will ask the Second Circuit (and other federal courts) to find that this case overturns prior Second Circuit rulings that shut out these cases before the plaintiffs could exhaust state administrative remedies.

Wednesday, March 1, 2017

2d Circuit gets around Garcetti defense in employee speech case

The Supreme Court had an unusual opinion last year, holding that government officials cannot fire or discipline employees over their mistaken belief that the employees had engaged in free speech activity. This means the plaintiff can win even if he did not in fact engage in free speech. That ruling helps this plaintiff, who was fired because a superior thought he had organized a demonstration outside a middle school in New York City.

The case is Hughes v. City of New York, a summary order issued on February 21. That Supreme Court case is Heffernan v. City of Patterson, 136 S. Ct. 1412 (2016), which said First Amendment retaliation claims may be based on a "perceived" association, rather than an actual protected association. In the Hughes case, the plaintiff was a public school employee who was sent out by management to watch a demonstration. But the Chancellor thought Hughes had organized the demonstration that led to the Superintendent's vehicle damage.

Step back for a minute and think about what's going on here. If you bring a lawsuit with a disputed legal theory and the Supreme Court issues a ruling that is right on point and advances your case all the way to the finish line, then you know for sure that God really does exist and the angels are looking over your shoulder.

Back to the case. The district court dismissed the case under Rule 12, ruling that Heffernan did not control the outcome because Hughes had engaged in work speech, not citizen speech, because someone at work had sent him out to watch the demonstration. The work speech/citizen speech distinction derives from a different Supreme Court ruling, Garcetti v. Cebellos (2006). But the Second Circuit (Calabresi, Leval and Carney) sees it differently, holding that "the mere fact that he was present at the demonstration because his employer assigned him to be there to observe does not compel the conclusion that any speech he engaged in related to the demonstration was pursuant to his employment duties."

This decision was issued as a summary order. But it could have been a published opinion. This is probably the first case in the Second Circuit to apply Heffernan, and the Garcetti distinction is rare in this Circuit, which has repelled close-call Garcetti arguments in only a handful of cases.