Tuesday, February 27, 2018

2d Circuit Issues Major En Banc Decision Holding Sexual Orientation Protected Under Title VII

Zarda v. Altitude Express, Inc., ___F.3d___(2d Cir. Feb. 26, 3018) (en banc), is a major decision that is undoubtedly on its way to the U.S. Supreme Court. The Second Circuit issued a 163 page decision with 8 separate opinions. The court ruled 9-3 that homosexuality or sexual orientation is protected under Title VII.  The court overruled Simonton v. Runyon, 232 F. 3d 33 (2d Cir. 2000) and largely adopted the EEOC's position as set forth in Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).

What I found most interesting about the case was Chief Judge Katzmann's majority opinion where after recognizing that sexual orientation claims were consistently not cognizable under Title VII, he stated that "legal doctrine evolves..." (Slip Op. at 8). Nevermind that the statute simply uses the phrase "because of sex" and efforts to amend Title VII to include sexual orientation have failed. That of course, was the point of the dissent.

This decision, as you may expect, has generated substantial press coverage.




I suspect such coverage will continue.

The real question is what will the Supreme Court do? My personal belief is that they have to take this case and that the Court for once and for all will recognize that sexual orientation is protected under Title VII. No matter how conservative the Court is, they recently recognized the constitutional right of homosexuals to marry. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In my view, it would be entirely illogical to believe that once married, an employer can terminate that employee for being gay.

Yes, I know Obergefell was decided on constitutional grounds and Title VII is a federal statute, so Obergefell will not technically be controlling, but come on?

For you law students out there, this case involves the classic issue about the role of judges in our society and what does "interpret the law mean?" Conservatives will stick to the exact language of the statute and examine what Congress intended in 1964 when they wrote the phrase "because of sex." Liberals recognize that legal doctrine, as Senior Judge Katzmann stated, "evolves" over time based upon the mores of society.

Before you jump into one camp or the other, consider another controversial issue-guns. Should the Second Amendment be interpreted conservatively only refer to the type of "arms" that existed in 1787 or should the right to bear arms include modern day weapons involving assault rifles? 

I also suspect the outcome of any Supreme Court case may also hing on whether President Trump gets another Supreme Court appointment and which Justice, if any, retirees. President Trump's Justice Department argued against protecting homosexuals from discrimination under Title VII. They lost big.

What do you think?

Mitchell Rubinstein

Tuesday, February 13, 2018

New York Court of Appeals Orders Disclosure of Facebook Information

The New York Court of Appeals issued a major lengthly decision concerning the disclosure of information on Facebook. Forman v. Henkin, ____N.Y.3d____(Feb. 13, 2018), was a personal injury action where Plaintiff claimed that she was impaired after a serious injury. The Defendant sought access to Plaintiff's entire Facebook account and Defendant claimed that it was private. Ultimately, the Court ordered limited disclosure, reasoning:

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules — there is no need for a specialized or heightened factual predicate to avoid improper "fishing expeditions." In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific "privacy" or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate — for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.
Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private [FN5]. But even private materials may be subject to discovery if they are [*5]relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege (see CPLR 4504). But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records — including the physician-patient privilege — are waived (see Arons v Jutkowitz, 9 NY3d 393, 409 [2007]; Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.
Applying these principles here, the Appellate Division erred in modifying Supreme Court's order to further restrict disclosure of plaintiff's Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial [FN6]. With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff's Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted "a lot" of photographs showing her active lifestyle. Likewise, given plaintiff's acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff's assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.
In addition, it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs' claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages. Because Supreme Court provided defendant no access to the content of any messages on the Facebook account (an aspect of the order we cannot review given defendant's failure to appeal to the Appellate Division), we have no occasion to further address whether defendant made a showing sufficient to obtain disclosure of such content and, if so, how the order could have been tailored, in light of the facts and circumstances of this case, to avoid discovery of nonrelevant materials.

Tuesday, January 9, 2018

Court of Appeals Issues Major 3020-a Decision

On January 9, 2017, the Court of Appeals issued a 14 page decision addressing the standard of review to be applied in Education Law Section 3020-a cases. Bolt v. Department of Education, ___N.Y. 3d___(Jan. 9, 2018). Interestingly, the Court's major opinion is fairly short (about a half of a page) and there is a concurring opinion which spans about 14 pages. This decision primarily addresses the issue of whether the Appellate Division erred by concluding that in 3 separate appeals,  that the Hearing Officer decision to terminate was shockingly excessive. In concluding that the Appellate Division erred in all three appeals, the majority simply stated:
"That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty" (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 920 [2011]). Here, the penalties imposed are not irrational and do not shock the conscience (see Matter of Russo v New York City Dept. of Educ., 25 NY3d 946, 948 [2015], cert denied ___ US ___, 136 S Ct 416 [2015]; Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; Matter of Featherstone v Franco, 95 NY2d 550, 554 [2000]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]). The Appellate Division exceeded its authority by reweighing the evidence and substituting its judgment for that of the hearing officer.
It is difficult for me to understand the court's rationale. How is a court to determine whether or not a particular decision is shocking if it does not weigh the evidence?

Monday, November 27, 2017

2d Department Decision Illustrates More Favorable State Discrimination Standards

Kassapian v. City of New York, ____A.D.3d____(2d Dep't. Nov. 15, 2017), is brought to your attention for several reasons.

The case concerned an ALJ who alleged that she was terminated because of her age, sex and retaliation for her speech under the NYS Constitution. She sought to amend her Free Speech Claim to assert a 1983 claim and the court held that a Notice of Claim was not required.

The court also held that the lower court erred by dismissing plaintiff's sexual harassment claims and appeared to apply a much more liberal standard than federal courts do. As the court explained:

Here, the Supreme Court erred in granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of sex and age in violation of the NYCHRL (see Administrative Code of City of NY § 8-107[1][a][3]). The allegation that a coworker repeatedly demonstrated a sex toy to the plaintiff was sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL (see Nelson v HSBC Bank USA, 87 AD3d 995, 999). Further, in opposition to the defendants' motion, the plaintiff submitted an affirmation of a separate coworker detailing further allegations of sexual harassment directed toward the plaintiff. The court erred in determining that the cause of action must be dismissed because the behavior constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense (see Williams v New York City Hous. Auth., 61 AD3d 62, 80), which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss (see Kaplan v New York City Dept. of Health & Mental Hygiene, 142 AD3d 1050, 1051).
Further, the allegations of disparate treatment of older employees, including the plaintiff, and that the plaintiff's demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHRL (see Administrative Code of City of NY § 8-107[1][a][3]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 40; cf. Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 621-622). The fact that the individual defendants were approximately the same age as the plaintiff does not render the cause of action insufficient (see Rollins v Fencers Club, Inc., 128 AD3d 401, 402).
The Supreme Court also erred in granting dismissal of the cause of action alleging unlawful retaliation based on the plaintiff's complaints of sexual harassment. Under the NYCHRL, the retaliatory act or acts complained of "must be reasonably likely to deter a person from engaging in protected activity" (Administrative Code of City of NY § 8-107[7]; see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 739). The allegations that, following the plaintiff's complaint to a supervisor concerning alleged sexual harassment, the plaintiff was assigned double the normal workload, subjected to increased scrutiny of her work and reprimands for minor errors, and ultimately demoted a few months later, sufficiently stated a cause of action to recover damages for unlawful retaliation for the plaintiff's complaints of sexual harassment in violation of the NYCHRL (see Ananiadis v Mediterranean Gyros Prods., Inc., 151 AD3d 915, 920; Fletcher v Dakota, Inc., 99 AD3d 43, 51-52; Williams v New York City Hous. Auth., 61 AD3d at 71). However, the complaint failed to allege that the plaintiff ever complained about the alleged age discrimination, and thus the court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination.

Friday, November 17, 2017

Whistleblower States A Claim Under New York Law

Demir v. Sandoz, Inc. ____A.D, 3d___(1st Dep't. Nov. 14, 2017), is an interesting decision for several reasons. First, the Appellate Division holds that a whistleblower states a claim under New York Labor Law Section 740 even if no violation of law is alleged. As the court states:
[P}laintiff adequately pleaded a Labor Law § 740 violation against defendants in alleging that its manufacturer and procurement of chemical ingredients for defendants' highest grossing product was not compliant with FDA regulatory requirements governing the drug's safety and efficacy, and she need not plead an actual violation of laws or regulations (see Webb—Weber v. Community Action for Human Servs., Inc., 23 NY3d 448 [2014]).
Next, the court held that by proceeding under Section 740, the plaintiff did not elect her remedies which would bar an employment discrimination claim:
The motion court correctly concluded that Labor Law § 740(7), the "election-of-remedies" provision, does not waive plaintiff's claim of discrimination under the New York State Human Rights Law (State HRL) (Executive Law § 296) because, in alleging discrimination on account of plaintiff's gender, national origin, and religion, plaintiff does not seek the same rights and remedies as she does in connection with her whistleblowing claim, notwithstanding that both claims allege that she was wrongfully terminated.
Finally, the court also held that the "relations back" doctrine applies to Section 740 cases and therefore, the case was not time-barred:
 Although that claim was not asserted until the Second Amended Complaint, filed on October 19, 2015, more than one year after her termination on February 4, 2014, the original complaint, filed on January 31, 2015, alleged that on February 3, 2014, plaintiff reported to the defendants' Business Practices Office defendants' improper practices regarding its procurement of chemicals to manufacture its highest grossing drug, and that those practices did not comply with FDA regulations. It further alleged that she was terminated the next day in retaliation for that conduct. This sufficed to give defendants notice of the transactions or occurrences to be proved in asserting the Section 740 claim in the later Second Amended Complaint (see Giambrone v Kings Harbor Multicare Ctr., 104 AD3d 546 [1st Dept 2013]). Nor is there any basis or sound policy reason to deem the relation back doctrine inapplicable to such whistleblower claims. The right to sue an employer for an allegedly retaliatory discharge predates enactment of that statute and thus is not the kind of "statute of repose" to which the relation back doctrine does not apply (Goldstein v New York State Urban Dev. Corp., 13 NY3d 511, 521 [2009]), nor is the time limit "so incorporated with the remedy given as to make it an integral part of it and the condition precedent to the maintenance of the action at all."
Importantly, this case involved a motion to dismiss and involved legal standards which requires that complaints be liberally construed in favor of the plaintiff. That same standard would not apply later in the litigation. In order to prevail, it appears that under Webber, plaintiff would still have to prove an actual violation of law.

Tuesday, November 7, 2017

Interesting 2d Circuit School District ADEA Decision

PFIZENMAYER v. HICKSVILLE PUBLIC SCHOOLS, ____F.3d____(2d Cir. Nov. 2, 2017), is an interesting decision. The court grants the school district summary judgement in an ADEA discharge case. I bring it to your attention because the court does an excellent job summarizing the applicable law. As the court stated:

A plaintiff asserting an employment discrimination claim under the ADEA must plausibly allege that her employer took adverse action against her and that her age was the “but-for” cause of the adverse action. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86–87 (2d Cir. 2015). “A plaintiff sustains an adverse employment action if he or she endures a ‘materially adverse change’ in the terms and conditions of employment. To be ‘materially adverse’ a change in working conditions must be ‘more disruptive than a mere inconvenience or an alteration of job  responsibilities.’” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). Here, the district court correctly determined that the conduct described in Pfizenmayer’s complaint either could not form the basis for a timely claim or did not rise to the level of an adverse employment action. Further, Pfizenmayer has not plausibly alleged, for the purposes of a constructive discharge claim, that the defendants discriminated against her “to the point such that [her] ‘working conditions bec[a]me so intolerable that a reasonable person in [her] position would have felt compelled to resign.’” Green v. Brennan, 136 S. Ct. 1769, 1776 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)). Second, Pfizenmayer contends that the district court erred in dismissing her ADEA hostile work environment claim. “An actionable discrimination claim based on hostile work environment under the ADEA is one for which ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim’s employment . . . .’” Kassner, 496 F.3d at 240 (quoting Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999)). Here, though certain aspects of Pfizenmayer’s claimed treatment are troubling, Pfizenmayer has not plausibly alleged that her “workplace [was] permeated with discriminatory intimidation, ridicule, and insult” of a kind that “alter[ed] the conditions of [her] employment.” Id. (quoting Brennan, 192 F.3d at 318). Third, Pfizenmayer argues that the district court erred in dismissing her ADEA retaliation claim. However, Pfizenmayer has not plausibly alleged that she engaged in any protected activity of which the defendants were aware. See Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006). “[I]mplicit in the requirement that the employer have been  aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff’s opposition was directed at conduct prohibited by” the ADEA. Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998).  

Tuesday, October 17, 2017

Mistaken Perception of Alcoholism Is Not Protected Under The NYC Human Rights Law

Makinen v. City of New York, ___N.Y.3d___(Oct. 17, 2017), is an interesting case to be aware of. The case addressed a certified question from the Second Circuit, namely whether the mistaken perception of alcoholism is protected under the NYC Human Rights Law and the Court concluded that it was not. As the Court explained:
As the Second Circuit noted, there is no ambiguity about the plain language of the NYCHRL, which is only open to one reasonable interpretation: the disability of alcoholism "shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse" (Makinen, 857 F3d at 496). Indeed, by its plain language, the NYCHRL does not regulate employer actions  motivated by concern with respect to the abuse of alcohol. Rather, the NYCHRL covers circumstances in which employers unfairly typecast alcoholics who have sought treatment and who are not presently abusing alcohol, so as to ensure that such persons are afforded a fair opportunity at recovery. Said differently, the NYCHRL provides that, with respect to alcoholism, a person is considered to be disabled (so as to trigger the protections of that law) only when he or she "is recovering or has recovered" and "currently is free of such abuse" (§ 8-102 [16] [c]; see § 8-107 [1] [a] [3]).

Thursday, October 12, 2017

Duty of Fair Representation Does Not Preempt NYS Human Rights Law

Figueroa v. Foster, ____F.3d____(2d Cir. July 17, 2017), is an interesting decision. The Duty of Fair Representation outlaws unions actions that are arbitrary, discriminatory or in bad faith. But the NYS Human Rights law also outlaws discrimination. Is it preempted? No, says the 2d Circuit, in an exhaustive opinion reasoning, in part:

As noted above, the anti‐discrimination roots of the duty of fair representation are long‐established. In Vaca, the Supreme Court observed that the “statutory duty of fair representation was developed [in the 1940s] in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act [(“RLA”)], and was soon extended to unions certified under the [NLRA].” 386 U.S. at 177 (citations omitted). As this Court more recently explained, “[a] union breaches its duty of  fair representation if its actions with respect to a member are arbitrary,  discriminatory, or taken in bad faith.” Fowlkes, 790 F.3d at 388. The purpose of  the duty of fair representation, therefore, can easily be said to encompass a  purpose of prohibiting discrimination. Indeed, the Local and the Commissioner agree that the NYSHRL serves the  same purpose of prohibiting discrimination as does the NLRA’s duty of fair representation. Each serves to reinforce the anti‐discriminatory purpose of the other. This mutual service is not a conflict such that the duty of fair representation and the NYSHRL “cannot be reconciled or consistently stand together.” In re MTBE Prod. Liab. Litig., 725 F.3d at 102. Instead, the two work in tandem to protect union members from invidious discrimination in all of its forms. This opinion addresses only the Local’s claim that the duty of fair representation preempts the NYSHRL in its entirety when applied to unions acting in their capacity as collective bargaining agents. We do not purport to address every potential conflict between the NYSHRL and federal law. For  example, NYSHRL claims are subject to a one‐year statute of limitations, see N.Y.  Exec. Law § 297(5), whereas private duty of fair representation claims are subject to a six‐month statute of limitations, see 29 U.S.C. § 160(b); DelCostello v. Int’l Bhd. 13 of Teamsters, 462 U.S. 151, 154‐55 (1983), and overlapping Title VII claims filed  with the SDHR are subject to a 300‐day statute of limitations, see Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78‐79 (2d Cir. 2015). We need not decide today which of these statutes of limitations applies to NYSHRL claims against unions because the present appeal does not raise facts that implicate any  such conflict. We hold only that the NYSHRL presents no potential conflict so incompatible with federal labor laws that all of its provisions must fall. We leave for other cases to resolve more specific conflicts between the NYSHRL and federal law as they arise.  
So, why is this significant? First, as indicated by the 2d Circuit itself, different statute of limitations apply to DFR claims than to discrimination claims. But, second and more importantly, much more deference is paid to union actions under the DFR standard than under a discrimination standard. Undoubtedly, that is why  the plaintiff here was the President of a large labor union seeking to declare that in DFR cases alleging discrimination, state law was preempted, leaving the DFR standard which is more favorable towards unions.

Stay tuned as this issue is not over. Law review commentary would be most welcome.

2d Circuit Issues Major En Banc Decision Holding Sexual Orientation Protected Under Title VII

Zarda v. Altitude Express, Inc ., ___F.3d___(2d Cir. Feb. 26, 3018) (en banc), is a major decision that is undoubtedly on its way to the U.S...