Second Circuit

| Mar 17, 2008 | Firm News |

Pucino v. Verizon Communications, Inc, 618 F.3d 112, 109 FEP 1697 (2d Cir. 2010). Panel: WINTER, Raggi, Livingston. Claims on Appeal: Title VII, NY state and NYC law harassment (sex). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiffs presented genuine issue of material fact on whether co-worker harassment was “based on sex,” where women but not men were assigned to dangerous areas to work, without support; denied equipment; reprimanded for using public washrooms (where unisex toilets were filthy and lacked locks); used the word “bitch” in a context that implies gender (used constantly, directed at women). Specifically gendered activity lends context to non-gendered discrimination (e.g., denial of overtime). To establish that activity was pervasive it was not necessary to specify the number or dates of incidents, provided that the activity is described in some detail as occurring often or frequently.

Henry v. Wyeth Pharmaceuticals, Inc, 616 F.3d 134, 109 FEP 1618 (2d Cir. 2010). Panel: LEVAL, Pooler, Parker. Claims on Appeal: 1. Title VII and N.Y. state law discrimination (sex). 2. Title VII and N.Y. state law retaliation. Disposition Below: 1. Judgment following a jury trial [defendant]. 2. Judgment following a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Racial remarks by non-decision makers properly excluded: one was by manager who was not a decision maker; one was minimally relevant but would cause “unfair prejudice” (FRE403) because of its inflammatory content (“tar baby”). Any error in excluding remark about black employee using “voodoo” and wearing “low pants” was harmless where record overwhelmingly favored jury’s finding that the adverse actions in that case were not motivated by race. Employee made no offer of proof on evidence of alleged discrimination against other black employees (FRE103(a)). Employee forfeited challenge to district court’s failure to provide jury instructions in advance on paper; objection not preserved. Although instructing jury on McDonnell Douglas framework and requiring that the employee prove that the employer’s proffered reasons were a pretext for discrimination, i.e., an intent to deceive (as was charged here) is discouraged and likely error, plaintiff did not object, there was no evidence of prejudice, and the jury charge thus did not constitute plain error. 2. Court misinstructed jury that the employee, to prove causation, was required to establish that the particular individuals who made the challenged decisions knew of the employee’s protected activity. It is sufficient that an agent carry out orders or is encouraged by a superior with knowledge to make the adverse decision. Because there was sufficient evidence in the record to establish that the managers with knowledge encouraged lower-level managers to write more critical reviews of his performance.

Vivenzio v. City of Syracuse, 611 F.3d 98, 109 FEP 1181 (2d Cir. 2010). Panel: KEARSE [LIVINGSTON, Vitaliano, concurring]. Claims on Appeal: Title VII, §§ 1981 and 1983 hiring (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court held that a 1980 racial hiring decree for firefighters remained in effect, and that the plaintiffs had not challenged its legality. Panel holds that the city did not establish, as a matter of law, that continued adherence to the 30-year old decree was a legitimate and non-discriminatory reason for using dual hiring lists. Material facts in dispute about the reasonableness of relying in the decree. City did not present evidence about the percentage of African Americans in its labor pool. Thus, city’s claim of reliance on the Consent Decree was inadequate to show a legitimate nondiscriminatory reason for the challenged hiring decisions. On remand, parties should address the relevant minority labor pool.

Kaytor v. Electric Boat, 609 F.3d 537, 109 FEP 1190 (2d Cir. 2010). Panel: KEARSE, Cabranes, Hall. Claims on Appeal: 1. Title VII and N.Y. state law harassment (sex). 2. Title VII and N.Y. state law retaliatory transfer. 3. Title VII and N.Y. state law retaliatory termination. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff] 3. Affirmed [defendant]. Grounds: 1. Plaintiff presented genuine issues of material fact about the alleged harassment being severe or pervasive, and about it being motivated by sex. The district court erred when it disregarded summary judgment evidence of sexist statements that were not directed at plaintiff, or that were seemingly gender-neutral, that would have been admissible to negative a non-gendered interpretation of the supervisor’s behavior. Manager often made fun of women, especially of their weight, and made comments about their bodies, though he paid compliments on plaintiff’s clothing and told her she looked good for a woman her age. Later, he began making hostile comments about her “flat ass,” the way she supposedly smelled and a gynecological exam. District court also erred in excluding or disregarding evidence of the manager’s Thereats of violence, which were probative of his hostility at the plaintiff for repelling his advances (e.g., outwardly expressing his wish to “choke” plaintiff, or see her in her “coffin”; when she Threatened to report manager’s conduct to a senior vice president, plaintiff testified that he got a “horrid” look on his face and Threatened to kill her). Analyzing the record, district court also drew inferences against the non-movant about the frequency of the supervisor’s comments; and about whether one incident in particular was subject to an innocent construction (involving a pussy-willow plant as a Christmas gift), which a trier of fact could construe as a cheap and filthy sexual innuendo. 2. Genuine issue of material fact about materially adverse action. Her complaints, through channels, about the alleged harassment led to her immediate transfer to a new supervisor. She was placed in an office with peeling, lead-laced paint; assigned a computer supposedly booby-trapped to log her onto prohibited websites; given fewer and less-prestigious duties; and publically yelled-at and embarrassed by her new boss. 3. Record established as a matter of law that the termination was motivated by the employee’s refusal to submit to a mental health examination.

Ruizv. County of Rockland, 609 F.3d 486, 109 FEP 1070 (2d Cir. 2010). Panel: POOLER, Calabresi, Kahn. Claims on Appeal: Title VII, §§ 1981 and 1983 termination (national origin, race). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in citing employee’s alleged misconduct as proof that he was not qualified for the position he held, for the purpose of establishing a prima facie case. Evidence of satisfactory performance in regular evaluations was sufficient to support this prong. Nevertheless, on the merits summary judgment is affirmed. Employer proffered legitimate, non-discriminatory reason for discharge (plaintiff’s failure to report sexual contact between patients and staff), and neither of There employees plaintiff cited as comparables was similarly situated (one resigned before he could be terminated, one denied observing or participating in inappropriate behavior, and one had limited information about misconduct).

Zakrzewska v. New school, — F.3d —-, 109 FEP 1019 (2d Cir. 2010). Panel: Per Curiam [Winter, Cabranes, Hall]. Claims on Appeal:  NYC law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: New York Court of Appeals answers certified question: Affirmative defense to employer liability for harassment established under Title VII in Faragher and Ellerth does not apply to sexual harassment and retaliation claims under section 8-107 of the New York City administrative Code.

McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 109 FEP 782 (2d Cir. 2010). Panel: JACOBS, Kearse, [CALABRESI, concurring]. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Two comments made by an employee in a different department, not directed at plaintiff, was too remote from the balance of the alleged verbal harassment to support a continuing violation under National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002). After plaintiff was transferred away from worksite where original harassment occurred, a salesman “[who] carried on numerous lengthy conversations with male buddies and made frequent comments about women such as referring to them as ‘chickies,'” and remarked (referring to another woman) that “[i]f it wasn’t going to be a sleep-over, she wasn’t worth the trip.” The “chickies’ comment is too innocuous, while the sleep-over comment was unrelated to the prior incidents even under the circuit’s flexible analysis: the event occurred in a different department, after a significant gap in time, and — even in the plaintiff’s telling — was not targeted at her. Moreover, “the salesman she overheard was a member of neither the production department nor the estimating department.” Finally, single remark did not, by itself, create an actionable hostile work environment.

Domnister v. Exclusive Ambulette, Inc., 607 F.3d 84, 109 FEP 667 (2d Cir. 2010). Panel: PARKER, Sack, Goldberg. Claims on Appeal: NY state and NYC discrimination (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Contention that state/local law claims were preempted by NLR and LMRA did not provide jurisdictional basis for removal. On the face of the complaint, there was no reliance upon collective bargaining agreement as the basis of the claim. Hence, district court lacked subject-matter jurisdiction to order summary judgment based on Garmon preemption defense or claim preclusion based on prior federal lawsuit.

Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 109 FEP 467 (2d Cir. 2010). Panel: SACK, Livingston, Lynch. Claims on Appeal: 1. § 1981 and N.Y. state and NYC law retaliation. 2. § 1981 and N.Y. state and NYC law harassment and constructive discharge. 3. § 1981 and N.Y. state and NYC law discrimination (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Employer’s alleged failure to investigate underlying discrimination claim was not in itself an “materially adverse action” under federal law subject to retaliation liability. “An employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint: Her situation in the wake of her having made the complaint is the same as it would have been had she not brought the complaint or had the complaint been investigated but denied for good reason or for none at all.” Same result would take place under state and city law. 2. Failure to prevent or correct alleged harassment does not by itself contribute to or constitute a hostile work environment. Other incidents noted (alleged denial of training and once being assigned to lesser-qualified supervisor) were too sporadic to support harassment claim. 3. District court erred in refusing to credit employee’s own testimony about discrimination in training opportunities. Nonetheless, the plaintiff’s testimony (that one manager allegedly confessed a discriminatory purpose in denial of training) was offhand, conclusory in nature and lack further support in the record, providing only a “scintilla” of evidence of discrimination.

Spiegel v. Schulmann, 604 F.3d 72, 23 A.D. Cases 129 (2d Cir. 2010). Panel: Per Curiam [Hall, Livingston]. Claims on Appeal: 1. ADA retaliation 2. N.Y. state law retaliation. 3. NYC law retaliation. State law tort claim (not discussed here). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [plaintiff]. Grounds: 1. Employer (based in Connecticut) was not within personal jurisdiction of New York federal district court. Individual supervisor may not be held personally liable for ADA retaliation. 2. Record is insufficient to demonstrate a genuine factual dispute with respect to whether plaintiff, whose claimed disability was obesity, was medically incapable of losing weight such that he might have qualified as disabled under the NYSHRL. Refusal to accept supplemental jurisdiction over novel claim under state law (that filing of allegedly meritless lawsuit against former employee was actionable retaliation) was not abuse of discretion. No error in denying motion to amend complaint or to enjoin state law lawsuit. 3. District court abused its discretion by excluding a statement by the employee’s manager: “In making this determination, the district court acknowledged Spiegel’ s deposition testimony that Vincent Gravina, who was the ‘leader’ of the Bensonhurst Center at the time of Spiegel’s termination from that center, had initially told Spiegel that the termination was based on his weight.” This admission ought to have allowed under FRE 801(d)(2)(A) and (D). Moreover, that statement presented a genuine issue of material fact about intent. Although plaintiff’s proof of his disability was insufficient to make out a claim under the AD and NYSHRA, the panel finds that New York City law was distinctive: “Neither the New York Court of Appeals nor any intermediate New York appellate court has addressed the question whether obesity alone constitutes a disability for the purposes of the NYCHRL.”

Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 109 FEP 133 (2d Cir. 2010). Panel: PARKER, Cabranes, Amon. Claims on Appeal: Title VII and § 1983 promotion (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in denying white and Latino police officers’ motion to intervene to challenge 25-year old consent decree concerning promotion to defendant, where civil service rules gave officers property interest in seeking promotion, party that would otherwise have parallel interest to intervening plaintiffs (their union) was no longer in the case, and applicant had interest in enforcing fair and non-discriminatory policy.

Kinneary v. City of New York, 601 F.3d 151, 22 A.D. Cases 1803 (2d Cir. 2010). Panel: HALL, Cabranes, Sullivan. Claims on Appeal: ADA, N.Y. state and N.Y.C. law termination. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Ship captain who could not produce urine sample for drug test due to paruresis, and hence could not qualify for license, was not a “qualified individual with a disability.” Plaintiff was offered accommodation of having test cancelled, but he did not meet requirements of 49 C.F.R § 40.193(d)(1) by providing physician’s note meeting regulatory requirements.

Brzak v. United Nations, 597 F.3d 93 (2d Cir. 2010). Panel: PARKER, Leval, Pooler. Claims on Appeal: Title VII, N.Y. state and N.Y.C. discrimination (sex). Disposition Below:  Dismissal on subject-matter jurisdiction grounds under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claim against the UN, its former diplomats and staff dismissed because the Convention on Privileges and Immunities of the United Nations (1946; ratified by the United States,1970) immunizes defendants. Plaintiffs contended that because the treaty was supposedly not self-executing, then in the absence of domestic enabling legislation, the CPIUN immunity was ineffective in U.S. courts. But once the United States deposited its ratification papers with the U.N., it affirmed that our nation recognized the treaty immunity and that immunity took effect upon ratification. .

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 108 FEP 769 (2d Cir. 2010). Panel: CALABRESI, Walker, Wesley. Claims on Appeal: 1. Title VII harassment (sex). 2. ADE and Title VII termination. 3. Title VII and ADEA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. Plaintiff presented genuine issue of material fact on both hostile work environment and Faragher/Ellerth defense. Six sexual comments (including over a loudspeaker), staring and grabbing plaintiff and other women over seventh month period could be found to be severe or pervasive. On defense, plaintiff conceded that employer had an anti-harassment policy, but she presented genuine issue of material fact by telling the harasser himself (who was in the chain of reports listed in the policy) to stop the behavior. Plaintiff is not compelled, as a matter of law, to take the complaint to other managers when the first complaint fails. In any event, there was other evidence that employees who pursued discrimination issues further up the chain found their complaints went unanswered. 2. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) overruled mixed-motive case law but did not supercede application of McDonnell Douglas method of proof. Regarding pretext, plaintiff presented genuine issue of material fact about whether employer genuinely acted on complaints of performance, where negative evaluation and employee complaint both occurred in the course of her complaints about discrimination, where performance evaluation lacked factual foundation and was drawn up based on one week’s experience with employee, and where employer appeared to ignore any facts that supported the employee’s version of events. There was also evidence that younger employees were not penalized for infractions. Plaintiff could also pursue age-plus-sex claim despite not pleading in complaint. 3. Four to five months may be close enough in time to establish temporal relationship between protected activity (here, complaining about race discrimination against co-worker and complaining about age and sex discrimination), so plaintiff presented prima facie case. For same reasons as discrimination claim, she also made out genuine issue of material fact on pretext.

DeRosa v. National Envelope Corp., 595 F.3d 99, 22 A.D. Cases 1621 (2d Cir. 2010). Panel: PARKER, Pooler, Raggi. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in applying judicial estoppel to plaintiff’s claim. Plaintiff applied for Social Security Disability Insurance (SSDI) benefit. Only statement in application arguably inconsistent with finding that he was a “qualified individual” related to his social interactions (impaired phone and computer use), not his capability to perform the essential functions of his job if permitted to work from home.

Ragone v. Atlantic Video, 595 F.3d 115, 108 FEP 781 (2d Cir. 2010). Panel: POOLER, Hall, Livingston. Claims on Appeal: Title VII, N.Y. state and N.Y.C. harassment (sex). Disposition Below: Order compelling arbitration [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff had a written arbitration agreement with one defendant, Atlantic Video (AVI), but not with a second defendant, ESPN, who was a client of AVI and used the plaintiff’s services as a make-up artist. District court compelled arbitration, relying in part on the defendants’ express waiver of provisions of the contract that might otherwise be deemed substantively unconscionable (such as shortening the limitations period, imposing loser-pays fee shifting, and limiting appeal rights). While panel affirms this order – holding that it was unnecessary to consider whether the offensive terms were severable where, as in this case, the employer did not seek to invoke them – it adds that the conclusion might have been different if employer did seek to enforce offending terms. Agreement covered ESPN as well, as it was all part of a single dispute consigned to arbitration.

Hicks v. Baines, 593 F.3d 159, 108 FEP 577 (2d Cir. 2010). Panel: JACOBS, Cabranes [Sotomayor, elevated to S. Ct.]. Claims on Appeal: §§ 1981, 1983 and N.Y. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Restates retaliation circuit law in light of Burlington Northern case, i.e., (1) anti-retaliation claims do not have to relate to terms and conditions of employment; (2) actions must nevertheless be materially adverse; (3) standard for evaluating adversity is an objective one; (4) acts of retaliation need to be considered separately and in the aggregate. While some acts plaintiffs complain about in this case were too conclusory to support claim, several claims survive summary judgment. Properly dismissed claims include vague claims of sabotage, misplaced documents, alleged physical Thereats and falsified employee-counseling memos, name calling and failure to pay bills. Claims that defendants sabotaged the workplace (by preventing the security system from operating, by leaving open a window) and intentionally adjusted work and break times to the employees’ detriment (posing possible safety risks) were sufficiently adverse.

Hanrahan v. Riverhead Nursing Home, 592 F.3d 367, 22 A.D. Cases 1377 (2d Cir. 2010). Panel: LYNCH, Parker, Hall. Claims on Appeal: AD and N.Y. state law termination. Disposition Below: Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under New York law, judicial review of administrative decision adverse to employee that resulted in dismissal for failure to join a necessary party was not entitled to claim preclusive effect.

Duch v. Jakubek, 588 F.3d 757, 107 FEP 1576 (2d Cir. 2009). Panel: CABRANES, Leval, Hall. Claims on Appeal: Title VII, N.Y. and N.Y.C. law harassment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court did not err in holding that plaintiff had a “reasonable avenue of complaint” under the company’s harassment policy, where employee had no fewer than five persons she could contact. Moreover, employee shown to have actual knowledge of harassing conditions was co-worker, not supervisor, and employee had requested that the employee not pass the information about the harassment along. Genuine issue of material fact existed, though, where employer’s direct supervisor had enough information to infer harassment (e.g., knew that employee sought transfer away from alleged harasser, employee said that harasser had done something he “should not have,” alleged harasser had prior history of such behavior, supervisor simply told the alleged harasser to “cut it out [and] grow up,” supervisor also witnessed employee growing tense and teary about going back to work with alleged harasser and agreed to change schedule). Also a genuine issue of material fact about the reasonableness of the measures (changing schedule did not end harassment and formal investigation was launched only months later).

EEOC v. United Parcel Service, Inc., 587 F.3d 136, 107 FEP 1345 (2d Cir. 2009). Panel: KATZMANN, Trager (NEWMAN, concurring). Claims on Appeal: Title VII enforcement action. Disposition Below: Enforcement of subpoena denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: .EEOC’s company-wide requests were relevant to investigation and district court erred by applying too restrictive a standard of relevance in determining that information about how religious exemptions to the UPS Appearance Guidelines are (or are not) granted nationwide. Appearance Guidelines apply to every UPS facility in the country, and until 1999, UPS did not allow employees who, for religious reasons, could not meet the Appearance Guidelines to work in public-contact positions. Charging parties were told that they could not drive a UPS truck while wearing a beard. Neither was told he could request an exemption from the policy for religious reasons, and when one charging party specifically requested a form to apply for a religious accommodation, he was told by two different UPS offices that none existed. One EEOC charge alleges not only one specific case of failure to accommodate, but a pattern or practice of religious discrimination in failing to accommodate those who cannot meet the UPS Appearance Guidelines for religious reasons. Despite that UPS had individual, possibly dispositive defenses against each charging party, the court holds that the EEOC could continue to investigate. EEOC not required to show that there is probable cause to believe that discrimination occurred or to produce evidence to establish a prima facie case of discrimination.

Leibowitz v. Cornell University, No. 07-4567 (2d Cir. Oct. 23, 2009). Panel: BIANCO, Kearse, Katzmann. Claims on Appeal: ADEA, Title VII, N.Y. and N.Y.C. law non-renewal. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: McDonnell Douglas standard is compatible with the “but-for” standard enunciated by the Supreme Court in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). Non-renewal of a contract of employment constitutes an adverse action, where an employee seeks renewal. Earlier opinion [Leibowitz v. Cornell Univ., 445 F.3d 586 (2d Cir. 2006)] suggested that plaintiff was alleging more than non-renewal and that the denial of a position equivalent to tenure would constitute an adverse action, we did not foreclose the possibility that the non-renewal of an employment contract alone could constitute an adverse action. Yet where an employee seeks renewal of an employment contract, non-renewal of an employment contract constitutes an adverse employment action for purposes of Title VII and the ADE all by itself. The employee presented, at the prima facie stage, sufficient evidence to make a genuine issue of material fact about the final element (an inference of discriminatory intent): “Here, plaintiff has presented evidence of the following: (1) during the relevant time period, in addition to plaintiff, defendants laid off five other employees, all of whom were females over the age of fifty; (2) defendants reassigned teaching duties once performed by plaintiff to at least There male instructors; and (3) defendants did not consider plaintiff for vacant positions that arose in 2002, prior to plaintiff’s departure, in the Long Island New York City offices, and attempted to fill one such position in the New York City office with a younger, male employee.” Finally, plaintiff presented contested issues of material fact about pretext: “Plaintiff presented evidence before the district court from which it could be inferred that the budgetary concerns cited by defendants were a pretext for discrimination. First, plaintiff presented evidence that the budgetary concerns in early 2002 diminished over the 2002-2003 school year and by July 2003 the ILR school Extension Division was ‘in solid financial shape’ with a budget ‘in the black.’ Further, the ILR school Extension Division had the funding necessary to hire twelve new employees during the relevant time period. Although the Extension Division also laid off six employees during that time, plaintiff notes that all six were females over the age of fifty. Second, plaintiff submitted evidence that, although her requests for addition al travel funds were cited as a factor in the decision not to renew her contract, it was a common practice amongst male Extension Division faculty members to negotiate for compensation as she did, and that none of these employees’ contracts were terminated or not renewed. Plaintiff submits that, if her requests were so onerous that granting them made her continued employment unsustainable, defendants were free to simply deny them. Third, plaintiff pointed to evidence that she was not considered for any vacant positions before or after her non-renewal, despite the availability of such positions. In particular, there is undisputed evidence that the Director of the Long Island office wanted to hire plaintiff to work as a senior extension associate, offered her the position, and was fired for doing so.”

McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 22 A.D. Cases 650 (2d Cir. 2009). Panel: LIVINGSTON, Walker, Kaplan. Claim on Appeal: ADA termination and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who worked as a utility operator in ink cartridge assembly area, who suffered from respiratory ailments and panic/anxiety attacks, failed to show that there was any reasonable accommodation available. “[R]eassignment to a vacant position” may be a reasonable accommodation under the ADA (42 U.S.C. § 12111(9)(B)), but employee bears the burden of proving that a position existed for which she was qualified and could have been reassigned at the time. Her chemical sensitivities disqualified her from the one position that did not require training, education or experience that the employee lacked. She was not qualified for other positions because she could not meet essential functions (including education and experience requirements). Reasonable accommodation did not require that the employer give the employee a promotion. Employer not liable solely for engaging in “interactive process” (29 C.F.R. §1630.2(o)(3)). Employee’s failure to engage in a sufficient interactive process does not form the basis of a claim under the ADA unless she also establishes that, at least with the aid of some identified accommodation, she was qualified for the position at issue.

Halpert v. Manhattan Apartments Inc., 580 F.3d 86, 107 FEP 459 (2d Cir. 2009). Panel: Per Curiam [Calabresi, Parker, Raggi]. Claims on Appeal: ADEA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employer can be held liable for age bias of independent contractor, if “independent contractor or other third party has been given actual authority to hire on behalf of the company, or whether the company, through its own words or conduct, has created apparent authority in that individual in the eyes of the job applicant.” The court finds relevant that “Halpert has presented evidence (1) that Laura Nielson, the career counselor who arranged the interview for Halpert, believed that Halpert would be interviewing for a position with MAI, not Brooks; (2) that the interview took place at MAI’s offices; and (3) that after the interview, Brooks and another MAI associate told Nielson ‘they were looking for someone younger.'”

Aulicina v. NYC Dep’t of Homeland Services, 580 F.3d 73, 107 FEP 277 (2d Cir. 2009). Panel: SACK, Straub, Wesley. Claims on Appeal: 1. Title VII failure to promote (reverse race). 2. Title VII harassment (reverse race) . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Employee presented genuine issue of material fact about (1) whether he met minimum experience and licensing requirements for the job; (2) other candidate who was hired lacked dispatching experience and commercial drivers license (as did the plaintiff); (3) comments by decision-maker disparaging of whites (“white f-k,” “white people are lazy”). 2. Genuine issue of material fact whether alleged harassment was pervasive or severe. On the former point, district court disregarded one serious instance (where supervisor said he would “get” plaintiff, and plaintiff knew him to be an ex-felon) and read timeline of event in light most favorable to the movant. On the latter point, the most serious comments could be perceived as physical Thereats.

Simmons v. New York City Transit Auth., 575 F.3d 170, 22 AD Cases 257 (2d Cir. 2009). Panel: WALKER, Jacobs, Level. Claims on Appeal: ADA, Rehabilitation Act, and NYC Admin. Act. Disposition Below: Attorney fee award [plaintiff]. Outcome on Appeal: Vacated [defendant]. Grounds: District court erred in awarding fees at S.D.N.Y. rates instead of E.D.N.Y. rates, which was forum for litigation. Panel restates presumption of forum fee as appropriate versus out-of-district rates. For higher rate, plaintiff must “persuasively establish that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better result” (or “likelihood that use of in district counsel would produce a substantially inferior result.”

Zakrzewska v. The New school, 574 F.3d 24, 106 FEP 1494 (2d Cir. 2009). Panel: Per curiam [Winter, Cabranes, Hall]. Claims on Appeal: NYC Admin. Code harassment (sex) and retaliation. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Question certified to N.Y. Ct. of Appeals. Grounds: Panel certifies the following question to state high court: “Does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) apply to sexual harassment and retaliation claims under section 8-107 of the New York City administrative Code?”

Sassaman v. Gamache, 566 F.3d 307, 106 FEP 417 (2d Cir. 2009). Panel: CABRANES, Feinberg, Hall. Claims on Appeal: Title VII termination (reverse sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Male employee, forced to resign due to allegation that he harassed female employee, presented direct evidence of sex stereotyping where commissioner who ordered termination “informed Sassaman by telephone that he would be terminated unless he chose to resign. According to Sassaman’s deposition testimony, Gamache defended his decision by explaining, ‘I really don’t have any choice. Michelle [Brant] knows a lot of attorneys; I’m afraid she’ll sue me. And besides you probably did what she said you did because you’re male and nobody would believe you anyway.'” Inference of discrimination supported by absence of adequate investigation. Though firing an employee who might cause employer to be sued is legitimate, non-discriminatory reason for discharge, jury could find that reason in this case was influenced by stereotype of males has sex harassers.

Latino Officers v. The City of New York, 558 F.3d 159, 105 FEP 1093 (2d Cir. 2009). Panel: CABRANES, Raggi, Hall. Claims on Appeal: Consent decree under Title VII, 42 U.S.C. §§ 1981, 1983, 1985, the First and Fourteenth Amendments and N.Y. and N.Y.C. law. Disposition Below: Motion for contempt denied [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although plaintiffs argued that statistical evidence showed that minority officers were being hauled up for disciplinary action (and treated harsher) more often than non-minority officers, panel found evidence was not clear and convincing: “Without more information to support causation, and lacking any analysis from the plaintiffs’ expert regarding the statistical significance of the disparities he identified, we are in complete agreement with the District Court that ‘[p]laintiffs’ showing falls far short of establishing that the NYPD is ‘allow[ing] discrimination.'” Record also shows that defendants took substantial steps to eliminate discriminatory practices: (1) established a Disciplinary Review Unit, titled the Employment Practices Unit, to review the NYPD’s disciplinary process and how it affects employment discrimination, (2) developed a ‘Know Your Rights’ guide, which details the NYPD disciplinary process, and (3) produced statistical reports on the NYPD discipline system. Record also showed that defendants had decided to conduct a review of at least one command each month to assess disciplinary actions taken and use information from their databases to train commanding officers about discipline trends.

Gorton v. Sullivan County BOCES, 554 F.3d 60, 105 FEP 523 (2d Cir. 2009). Panel: Per Curiam (Jacobs, Walker, Calabrisi). Claims on Appeal: Title VII harassment (sex). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Boards of cooperative educational service created under state law to help equalize costs among school districts were not arms of the state and are not draped in Eleventh Amendment immunity.

Alleyne v. American Airlines, Inc., 548 F.3d 219, 104 FEP 1384 (2d Cir. 2008). Panel: Per Curiam (Sotomayor, Katzmann, Hall). Claims on Appeal: Title VII revocation of seniority (race). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Because complaint alleged discriminatory revocation of nine years of seniority by employer and union, two years prior to termination, charge should have been filed within 300 days of revocation rather than at time of termination and was now untimely.

Mathirampuzha v. Potter, 548 F.3d 70, 104 FEP 1159 (2d Cir. 2008). Panel: SACK, Winter, Straub. Claims on Appeal: 1. Title VII retaliation and harassment (national origin). 2. Title VII discrimination (national origin). FTCA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant].  Grounds: 1. EEO charge that identified only a single assault, without further allegations of hostile work environment or retaliation, not reasonably related to such claims and did not meet federal employee exhaustion requirement, as such claims were not “reasonably related.” 2. Single assault did not alter materially the employee’s working conditions. Repeated denials of transfers, whether or not materially adverse, not shown to be discriminatory; decision-maker was separate from alleged harasser.

Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 103 FEP 1232 (2d Cir. 2008). Panel: JACOBS, Pooler, Sack. Claims on Appeal: ADEA benefits. ERIS and state law claims (not discussed here). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Charge filed seven years after taking early retirement under program challenged as age-discriminatory was time-barred. No basis for equitable estoppel or tolling where there was no record that employer deliberately plotted to eliminate early retirement option or misled employee about terms.

Richardson v. Commission on Human Rights & Opportunities, 532 F.3d 114, 103 FEP 1217 (2d Cir. 2008). Panel: WALKER, Sack, Wesley. Claims on Appeal:  Title VII discrimination and retaliation. Disposition Below: Summary judgment (defendant). Outcome on Appeal:  Affirmed (defendant). Grounds:  CBA governing the workplace provided that “disputes over claimed unlawful discrimination shall be subject to the grievance procedure but shall not be arbitrable if a complaint is filed with the Commission on Human Rights and Opportunities [CHRO] arising from the same common nucleus of operative fact” [Article 15, Section 10]. Provision violated neither the anti-retaliation provisions of Title VII, 42 U.S.C. § 2000e-3(a), nor the judge-created prohibition against prospective waivers of Title VII rights enshrined in Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974). Provision did not rise to adverse employment action, nor did it prospectively waive any rights the employee had under federal law. Union’s choice to adhere to policy was also non-discriminatory, as it was based on the language of the contract instead of an intent to discriminate. Splits with the Seventh Circuit’s decision in EEOC v. Board of Governors, 957 F.2d 424 (7th Cir.), cert. denied, 506 U.S. 906 (1992).

Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 20 A.D. Cases 1281 (2d Cir. 2008). Panel: CALABRESI, Kearse, Katzmann. Claims on Appeal: AD and N.Y. state law termination and reasonable accommodation. Disposition Below: Judgment after a jury verdict ($2.5 million in compensatory damages, remitted to $600,000; $9,114 in economic damages, $5 million in punitive damages, capped at $300,000; and $2 in nominal damages) (plaintiff). Outcome on Appeal: Affirmed (plaintiff). Grounds:  Plaintiff with cerebral palsy sued employer, and supervisor and manager (under state law). Court upholds jury verdict and award, holding that (1) jury properly found that employee was in fact disabled and regarded as disabled (where manager testified she “knew there was something wrong” with him); (2) jury could find that employee’s transfer from pharmacy out to the parking lot was an adverse employment action, even though it did not affect his wages or benefits, where it was ; (3) an employer might be obliged to enter into the interactive process to provide a reasonable accommodation, even if the employee does not perceive him/herself as disabled, if the “disability is obvious”; (4) the district court did not err in allowing the employee to introduce evidence of a consent decree in EEOC v. Wal-Mart Stores, Inc., No. S99 CIV 0414, 2001 WL 1904140 (E.D. Cal. Dec. 17, 2001), which “required Wal-Mart, inter alia, not to engage in any employment practice that would violate the ADA, to train Wal-Mart employees in ADA compliance, and to formulate accurate job descriptions that are consistent with actual job requirements,” where it was introduced for limited purpose of showing that the company knew its legal obligations; and (5) the damage awards could be sustained under federal and state law. Court need not answer “close” question of whether employer violated prohibition against pre-employment medical inquiries (29 U.S.C. § 1630 app.) where it asked in interview whether he could carry fifty-pound boxes, where jury already awarded the caps in compensatory damages. No reversal for district court’s application of remittitur formula to allocate award between state and federal claims where error, if any, prejudiced employee.

Ricci v. DeStefano, 530 F.3d 87, 103 FEP 1044 (2d Cir. 2008). Panel: Per Curiam [Pooler, Sack, Sotomayor]. Claims on Appeal: Title VII disparate impact. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Affirmed for reasons stated in district court opinion.

Beyer v. County of Nassau, 524 F.3d 160, 103 FEP 140 (2d Cir. 2008). Panel: CALABRESI, Walker, Raggi. Claims on Appeal: Title VII, §§ 1983, 1985 and 1986, NY state and NYC law denial of transfer. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee made out prima facie case that she suffered an adverse employment action.  Although the serology department where plaintiff worked demanded greater scientific skills, the record (read in plaintiff detective’s favor) showed that work was in decline in employee’s department. Meanwhile, the record suggested that, for an officer pursuing a career in police forensics, being placed in the Latent Fingerprint Section was both desirable and objectively preferable to working in the Serology Section, because (1) at least seventeen people applied for the November 2000 posting, and the supervisor of the unit viewed the jobs as a way of “tak[ing] care of the guys” who had done “the right thing”; (2) assignment to that Section entailed using up-to-date equipment and learning new skills; and (3) none of the Department’s latent fingerprint work was being outsourced.

Holcomb v. Iona College, 521 F.3d 130, 102 FEP 1844 (2d Cir. 2008): Panel: CALABRESI, Walker, Sack. Claims on Appeal: Title VII termination (association with racial minority). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Racial discrimination includes taking adverse action against an employee who associates with persons of a racial minority (white basketball coach who associated with African-American spouse and black players), joining the Fifth, Sixth and Eleventh Circuits. Director and Vice President excluded black high school students — as well as spouse — from alumni fund-rasing events; director wondered out loud about the black teammates whether the school could “get these colored boys to dress like the white guys on the team”; and VP uttered numerous racial slurs, including that “everybody at Fordham thinks they have these good black kids, and Iona has niggers.” VP also asked plaintiff about fiancé whether “[Y]ou’re really going to marry that Aunt Jemima? You really are a nigger lover.” A reasonable jury could find that Director and VP possessed a racial motive to discriminate against coach (racially questionable remarks, ” strikingly racist” remark about him and his wife, apparent desire to appeal to Iona’s mostly white alumni base by minimizing presence of African Americans involved with the basketball team.

Rweyemamu v. Cote, 520 F.3d 198, 102 FEP 1678 (2d Cir. 2008). Panel: WALKER, Cardamone, Straub. Claims on Appeal: Title VII promotion . Disposition Below: Dismissal for lack of subject-matter jurisdiction [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: “Ministerial exception,” an implied First Amendment exclusion from Title VII coverage, bars priest from suing archdiocese for failure to assign to a parish. Distinguishes Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), as case where the employer relied on federal Religious Freedom Restoration Act for a defense (though panel casts doubt on this precedent’s viability in dicta).

Ximines v. George Wingate High school, 516 F.3d 156, 102 FEP 1284 (2d Cir. 2008). Panel: Per curiam (Pooler, Livingston, Kaplan). Claims on Appeal: ADEA, NY state and NYC law promotion . Disposition Below: Judgment on the pleadings [defendant]. Outcome on Appeal: Reversed in part [plaintiff]. Grounds: District court erred in holding that the employee’s charge did not complain of failure to promote. Denial of right to amend complaint to add this claim was abuse of discretion. On remand, court should consider whether to substitute New York City Dep’t of Education as proper defendant in light of intervening change in law that created new department which may have capacityu to be sued and may be subdivision of city board of education.

Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 102 FEP 805 (2d Cir. 2008). Panel: GERTNER, Sotomayor, Katzmann. Claim on Appeal: 1. Title VII harassment and retaliation (sex). 2. Title VII interference. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Employee presented a genuine issue of material fact that she had employment relationship with hospital, where record established that hospital had control of manner and means of her performance: her performance was supervised by hospital administration, quality management standards regulated the performance and timing of certain procedures, she was informed of medical work that caused “lost income” to the hospital and encouraged to alter her practice accordingly, hospital imposed training on doctor to change her methods of diagnosis and treatment (beyond regulatory requirements), she was governed by staff rules, required to attend one-hour staffing every There months and to be on-call for individuals who were not her patients. Court notes possible split in how courts handle impact of such “peer review” programs on employment relationship. Court also notes split in circuits about whether employment relationship is a bench or jury issue.2. Court declines to apply interference theory from Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973), i.e., that hospital interfered with her employment relationship, because physician does not have an “employment” relationship with patients.

Patane v. Clark, 508 F.3d 106, 102 FEP 171 (2d Cir. 2007). Panel: Per curiam [Calabresi, Wesley, Brieant]. Claims On Appeal: Title VII, N.Y. and N.Y.C. law harassment, discrimination (sex) and retaliation . Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court correctly dismissed Title VII and state law allegations of discrimination that fell below the “short and plain statement” standard of Rule 8 (which alleged neither “that she was subject to any specific gender-based adverse employment action,” nor “any factual circumstances from which a gender-based motivation for such an action might be inferred”). But it erred in reversing the harassment allegations. Employee adequately alleged that (1) she was subjected to a hostile work environment because her boss was an avid consumer of pornography at the work site, and (2) her boss had once used her office computer to download pornography and she was thus exposed to it involuntarily. Plaintiff also sufficiently alleged retaliation, despite a temporal gap between her first reports of harassment to the employer and removal of her secretarial duties, where complaint stated that she overheard individuals conspiring to drive her out of her job and she received a negative performance review that specifically complains about her attitude towards her boss.

McInerney v. Rensselaer Polytechnic Institute, 505 F.3d 135, 19 A.D. Cases 1415 (2d Cir. 2007). Panel: Per Curiam (McLaughlin, Raggi, Rakoff). Claims On Appeal: ADA/Rehabilitation Act reasonable accommodation, discrimination and retaliation . Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Research assistant’s claims under Title III and V for discrimination in public accommodations and retaliation (appointment of adequate thesis advisor, assistance in funding of research, providing tutor, accommodate his disability during doctoral exam) required no filing of administrative charge at EEOC.

Porzig v. Dresdner Kleinwort, 497 F.3d 133, 101 FEP 338 (2d Cir. 2007). Panel: HALL, Calabrisi, Parker. Claims on Appeal: ADEA termination. Disposition Below: Motion to vacate arbitration award denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in applying FA and “manifest disregard” standard when it declined to vacate award of attorneys fees, where panel placed limits on award, in manifest disregard of the governing law. Same arbitral panel had previously been reversed by district court for denying an award of fees. On remand, it awarded fees capped by 1/3 contingency fee, in manifest disregard of Supreme Court precedent holding that contingent fee contract was not a limit on lodestar award. Panel issued second award without explaining how it calculated award nearly identical to contingent fee, and in teeth of employer’s argument that advanced several misstatements of law, including one on the point of law that motivated the original remand. Panel also erred under FAA, 9 U.S.C. § 10(a)(c), by ordering employee’s counsel to return fee already collected from client, as attorney was not a party to the arbitration and panel; arbitration clause did not bind him. On remand, employee’s counsel should also be awarded appellate fees.

Powell v. Omnicom, BBDO/PHD, 497 F.3d 124, 101 FEP 351 (2d Cir. 2007). Panel: WALKER, Winter, Sack. Claims on Appeal: Title VII, ADE and state law termination. Disposition Below: Settlement agreement enforced [defendant].Outcome on Appeal: Affirmed [defendant]. Grounds: Oral settlement, entered into record in district court, enforced. No evidence that parties intended that agreement would only become enforceable after it was reduced to writing and signed. Even if OWBP applied to in-court settlement, agreement did not violate that act; employee had reasonable time to review. District order giving employee leave to vacate dismissal without prejudice was superceded by conference in which court found that the settlement was binding.

Kassner v. 2d Avenue Delicatessen, Inc., 496 F.3d 229, 101 FEP 259 (2d Cir. 2007). Panel: STANCEU, Kearse, Sack. Claims on Appeal: 1. ADEA, NY State and NYC discrimination. 2. ADEA, NY State and NYC harassment. 3. ADEA, NY State and NYC retaliation. Disposition Below: 1. Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim [defendant]. 2. Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim [defendant]. 3. Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim [defendant]. Outcome on Appeal: 1. Reversed in part [plaintiff]. 2. Reversed in part [plaintiff]. 3. Reversed in part [plaintiff]. Grounds: 1. District court erred in dismissing complaint in entirety when some acts alleged (shift and work station assignments) occurred within limitations period. Such assignments could constitute an adverse employment actions. Some claims, though, were facially time-barred, such as less-desirable assignments alleged to have been made in 1999, several years before filing of charge and civil action. Court also erred in not exercising discretion under Fed. R. Civ. P. 15 to allow filing of amended complaint after expiration on deadline in pre-trial order (Fed. R. Civ. P. 16(b)), when it held that complaint amendment was futile. Case remanded to consider whether there was prejudice to defendant. 2. Allegation that employee was pressured to retire (including by suspension from job without pay) too vague to make out claim of harassment, but allegation that second employee was subjected to repeated degrading comments about her age (“drop dead,” “retire early,” “take off all of that make-up, “take off your wig”) did state claim. 3. One employee failed to identify acts alleged to have been taken for complaining about age discrimination, but other plaintiff specified adverse actions concerning unfavorable job assignments.

D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 99 FEP 1601 (2d Cir. 2007) . Panel: CABRANES, Raggi, Korman. Claim on Appeal: ADEA transfer and overtime. Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Affimed [plaintiff]. Grounds: Reaffirming holding in Rogers v. NYU, 220 F.3d 73 (2d Cir. 2000), that mandatory arbitration clauses in collective bargaining agreements are unenforceable to the extent that they purport to waive employees’ rights to a judicial forum for federal statutory causes of action.

Pyett v. Pennsylvania Bldg. Co., 498 F.3d 88 (2d Cir. 2007). Panel: Per Curiam (Walker, Hall, Gibson). Claim on Appeal: ADEA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Offering one of two pharmacist positions to applicant eight years younger, combined with evidence that employer’s explanation was not worthy of credence (e.g., no managerial experience was required for job, there were eight full-time positions open in the applicant;’s area, and at least one was available by public transportation), presented genuine issues of material fact.

Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 99 FEP 1445 (2d Cir. 2007). Panel: LEVAL, Calabresi, Friedman . Claims on Appeals: ADEA, N.Y. and N.Y.C. termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: A 62-year-old Supervisor of Resident Services terminated, possibly in favor of a 25-year-old new hire (a contested issue of fact). For two years she was subjected to regular references to her age by her supervisor (e.g., supervisor would begin sentences with “In your day and age,” suggest that employee related well to and “could understand the mentality of’ . . . senior residents,” repeatedly asked whether she would be better off retiring so that she could “take time off to rest”). District court erred in holding that such remarks were inadmissible as “stray remarks.” Court states: “Where we described remarks as ‘stray,’ the purpose of doing so was to recognize that all comments pertaining to a protected class are not equally probative of discrimination and to explain in generalized terms why the evidence in the particular case was not sufficient. We did not mean to suggest that remarks should first be categorized either as stray or not stray and then disregarded if they fall into the stray category.” Other evidence of discrimination included hiring of younger employees to attract a younger clientele; employee had good record of performance, pay and raises; and supervisor made age-related comment when employee was terminated.

Fernandez v. Chertoff, 471 F.3d 45, 99 FEP 589 (2d Cir. 2006). Panel: MINER, Kearse, Hall. Claim on Appeal: Title VII demotion (national origin). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee under Civil Service Reform Act (CSRA) has option under 5 U.S.C. § 7121(d) to pursue discrimination claim through either a negotiated grievance procedure (a union-assisted process, subject to administrative review) or a statutory complaint procedure, but must make irrevocable election of one procedure. In a pure discrimination case, where the only claims are discrimination, an employee who chooses the negotiated grievance procedure must appeal the arbitrator’s award to the EEOC before bringing suit (while in a mixed case, involving claims of other violations subject to Merit System Protection Board, appeal must go to MSPB). Employee chose negotiated grievance procedure, which led to settlement that employee did not accept and union then withdrew. Panel holds that employee’s claim was “pure” claim, in light of acknowledgment in letter from agency denying claim, agency’s motion to dismiss, and a form complaint provided to the employee by the agency. District court erred in failing to consider whether there were equitable considerations to employee’s failure to exhaust EEOC remedies before filing civil suit, because union withdrew from his arbitration (preventing a “final decision” from which the employee could have taken an appeal to EEOC), employee was not informed or given opportunity to represent himself, and employee did file application for relief in the EEOC after union’s abandonment of process.

Woods v. Rondout Valley Central Sch. Dist., 466 F.3d 232, 98 FEP 1803 (2d Cir. 2006). Panel: RAGGI, Feinberg, Kearse. Claims on Appeals: ADEA, N.Y. state law and termination. § 1983 First Amendment retaliation (not discussed here). Disposition Below: Motion to dismiss under Fed. R. Civ. P. 12(b)(6) denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: school district not an arm of the state for purposes of applying Eleventh Amendment.

Nestor v. Pratt & Whitney, 466 F.3d 65, 98 FEP 1817 (2d Cir. 2006) . Panel: JACOBS, Winter (concurring without opinion), Walker (concurring in result, without opinion) Claims on Appeals: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome. Reversed [plaintiff]. Grounds: Employee who proceeded successfully in Connecticut state administrative proceeding may file Title VII suit to obtain relief unavailable in state case, e.g., compensatory damages, punitives and attorney’s fees (noting split in circuits on issue), regardless of whether state or federal rules of claim preclusion are invoked. Under federal law, state court decision on merits of discrimination claim is final, but Title VII permits claimants to seek supplemental relief. Liability finding against employer continues to bind it. Under state law, court follows “transactional” test and employee could “split” claim where state law failed to provide a remedy.

Joseph v. Leavitt, 465 F.3d 87, 98 FEP 1540 (2d Cir. 2006) . Panel: WALLACE, Walker [JACOBS, concurring]. Claims on Appeals: Title VII administrative leave (race). Disposition Below: Summary judgment [defendant]. Outcome: Affirmed [defendant]. Grounds: Paid administrative leave for nearly one year during investigation of alleged misconduct and criminal charges was not an adverse employment action Burlington Northern v. White, 126 S. Ct. 2405 (2006). Application of disciplinary policies in a non-discriminatory fashion does not violate Title VII. Continuation of leave five months after criminal charges were dropped was reasonable, given employee’s original refusal to cooperate. noting in dictum that “exceptionally dilatory” investigation might be adverse. Even assuming that the agency committed other adverse actions, no evidence of racial animus. Too small a sample for appropriate statistical study.

Kessler v. Westchester Co. Dep’t of Social Services, 461 F.3d 199, 98 FEP 1185 (2d Cir. 2006). Panel: KEARSE, Feinberg, Raggi. Claim on Appeal: Title VII and ADEA retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: In light of Burlington N. & Santa Fe Ry. Co. v. White, district court erred in analyzing whether employee suffered an adverse employment action. Genuine issue of material fact presented where transfer deprived employee of policy-making, personnel and budgetary duties; compelled him to report to a supervisor whose grade level was no higher than his own; denied him managerial assignments and led to his being excluded from meetings of even lower-level managers; denied him a staff; and even caused him to perform clerical and data-entry duties with employees several grade levels below him. Plaintiff also presented genuine issues of material fact about other elements of prima facie case: (1) he had good faith belief that his personnel complaint challenged age, sex, religious and race discrimination; and (2) despite that the supervisor who made decision allegedly did not know about employee’s complaints, general corporate knowledge that employee engaged in protected act is sufficient. Allegedly retaliatory actions took place just days after key events in complaint process. Employee also presented genuine issue of material fact about pretext, showing that his skills were not used in new job and his new supervisor admitted that the transfer to Yonkers was simply meant to remove him from the White Plains office.

Gulino v. Board of Education of the N.Y.C. Sch. Dist., 460 F.3d 361 (2d Cir. 2006) . Panel: WESTLEY, Raggi, Droney . Claim on Appeal: Title VII disparate impact testing (race) . Disposition Below : Judgment after a bench trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in leaving N.Y. State Education Dep’t (SED) in case as a defendant in Title VII class action. Department’s entire role was to require administration of Core Battery LAST (Liberal Arts and Sciences Test)) test to aspiring teachers. SED could not be held liable on theory that it (1) was an “employer” of the teachers; (2) “interfered” with the employment relationship with the Board (noting split in circuits on this latter issue); (3) was a joint employer; (4) was an “instrumentality” of the board; or (5) under common law had an agency relationship with the class. Board was properly held liable as an employer and was not privileged by argument that it was compelled to follow state law; mandates of state law are not a defense against to Title VII liability. Argument that licensing of teachers is not an aspect of employment relationship fails; it is not merely a licensing agency, but also wears an employer’s hat, and licensing teachers qualifies them to instruct students. . While district court believed that prior case law in circuit governing review of content validity had been overruled by Watson v. Fort Worth Bank, this was legal error; Watson did not purport to overrule earlier cases that require employers to validate their tests consistent with the EEOC Guidelines, and at any rate Watson was only a plurality opinion. Because there is no evidence that the test was ever properly validated, judge committed clear error in finding otherwise. Job relatedness of one section of the test (essay portion) does not suffice to support job relatedness of the balance of the test.

Ofori-Tenkorang v. American International Group, Inc., 460 F.3d 296, 98 FEP 1089 (2d Cir. 2006). Panel: CABRANES, Winter, Raggi. Claim on Appeal: 1. §1981and N.Y. state law for events in South Africa. 2. §1981and N.Y. state law for stateside events. Disposition Below: 1. Dismissal for failure to state a claim , Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim , Fed. R. Civ. P. 12(b)(6) [defendant] . Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. 42 U.S.C. § 1981 is not extra-territorial. “[Unlike those other civil rights statutes, which have been amended deliberately to reach conduct occurring outside the United States [ADA, ADE and Title VII], Section 1981 protects only ‘persons within the jurisdiction of the United States,’ 42 U.S.C. § 1981(a).” Thus, that the employment relationship originated in the U.S. or, by the plaintiff’s reckoning, had its “center of gravity” here, is immaterial to applying section 1981 to conduct in South Africa. 2. District court erred in dismissing claims regarding discrimination while plaintiff was in the U.S. (segregation of black employees from white colleagues in South Africa, denial of bonus and other activities occurring in New York.

Meacham v. Knolls Atomic Power Laboratory, 461 F.3d 134 (2d Cir. 2006). Panel: JACOBS, McLaughlin [POOLER, dissenting]. Claim on Appeal: ADE and N.Y. state law disparate impact termination. Disposition Below: Judgment after jury verdict; damages including emotional distress (under state law), back and front pay and liquidated damages [plaintiffs]. Outcome on Appeal: Reversed [defendant]. Grounds: Remand from Supreme Court of Meacham v. Knolls Atomic Power Laboratory, 381 F.3d 56, 94 FEP 602 (2d Cir. 2004). Supreme Court granted certiorari, vacated and remanded the decision for reconsideration in light of Smith v. City of Jackson, 544 U.S. 228 (2005). Smith affirmed the viability of disparate impact under the ADEA, subject to a broad defense of “reasonable factors other than age” (RFOA) for employers (29 U.S.C. § 23(f)(1)). While the employees’ challenge to the RIF targeted the company’s reliance on subjective evaluations of “flexibility” and “criticality” established impact on employees age 40 and over, employer presented testimony that these factors were commonly-understood and -applied concepts in management, and necessary to the functioning of a shrinking workforce. Although the employees challenged this testimony with evidence that the criteria were vague and unvalidated, court found that the rebuttal failed to discharge the burden of proving unreasonableness. Statistical evidence of age disparity alone could not carry the day: “The probative record evidence suggests that the factors used in KAPL’s IRIF could have been better drawn and that the process could have been better scrutinized to guard against a skewed layoff distribution. However, KAPL set standards for managers constructing matrices and selecting employees for layoff, and it did monitor the implementation of the IRIF. The IRIF restricted arbitrary decision-making by individual managers, and the measures that KAPL put in place to prevent such arbitrary decision-making and ensure that the layoffs satisfied KAPL’s business needs–while not foolproof–were substantial. Any system that makes employment decisions in part on such subjective grounds as flexibility and criticality may result in outcomes that disproportionately impact older workers; but at least to the extent that the decisions are made by managers who are in day-to-day supervisory relationships with their employees, such a system advances business objectives that will usually be reasonable.”

Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 98 FEP 968 (2d Cir. 2006). Panel: B.D. PARKER, Sack, Katzmann . Claim on Appeal: Fee award. Disposition Below: Rule 68 demand enforced [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court clearly erred in finding that employee’s recovery fell below $20,001 offer of judgment that did not offer equitable relief, where employment accepted remittitur to $10,000 of jury award, but received reinstatement, restoration of private secretary and desirable office, and adjustment of Hays points. Equitable relief is intended to be primary under Title VII, and certainly cannot by assigned no value under Rule 68, where employee had been (until demotion) a senior executive with a staff of 900. Reduction of lodestar hourly rate also in error; application of reduced rate in retainer agreement not justified.

Williams v. New York City Housing Auth., 458 F.3d 67, 98 FEP 975 (2d Cir. 2006) . Panel: Per Curiam [McLaughlin, Hall, Gibson] . Claim on Appeal: 1. Title VII retaliation. 2. Title VII discrimination (sex). Disposition Below: 1. Dismissal for failure to state a claim , Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim , Fed. R. Civ. P. 12(b)(6) [defendant] . Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Retaliation incidents occurred more than 300 days before filing of charge. 2. Although plaintiff failed to check off “sex” on EEOC form, facts as alleged were reasonably related to discrimination, placed EEOC on notice to investigate claims on discrimination basis, and thus exhausted administrative remedies.

McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 98 FEP 769 (2d Cir. 2006) . Panel : JACOBS, McLaughlin, B.D. Parker.Claim on Appeal: 1. Title VII termination (race, national origin). 2. ADEA termination. Due process claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Claims were untimely, despite that employee file prior timely charge and received right-to-sue letter, where right-to-sue letter was issue in connection with drawn first charge. Claim of equitable estoppel denied. 2. Assuming employee satisfied prima facie case, employer proffered legitimate, non-discriminatory reason for termination (investigatory conclusion that employee used corporal punishment on student and tried to silence a child accuser). Employer not required to use any particular process to reach employment decision, and employer could rely on hearsay evidence to reach conclusions.

Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 98 FEP 773, 18 A.D. Cases 193 (2d Cir. 2006). Panel: WALKER, Winter, Sotomayor. Claim on Appeal: 1. ADA reasonable accommodation. 2. ADEA discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds : 1. Genuine issue of material fact presented with whether employer could have provided reasonable accommodations to employee with bone spur (indefinite unpaid leave to see foot specialist about rehabilitation). Though employee’s communication did not specify unpaid leave, a jury could find that request implied such leave. Jury could also infer, putting together testimony, that request was for two weeks’ leave. Circuit has not decided whether (1) indefinite unpaid leave is a reasonable accommodation or (2) how certain assurance is that the employee will return to work; point not pressed by employer on appeal. Reassignment not a reasonable accommodation, because it would have to be created for him. 2. Assuming prima facie case is satisfied, employer had legitimate non-discriminatory explanation for reassignment (disability made it infeasible for him to continue to work in his position).

Demoret v. Zegarelli, 451 F.3d 140 (2d Cir. 2006) . Panel: SOTOMAYOR, Cardamone, Pooler . Claim on Appeal: 1. Title VII, § 1983 and N.Y. state law harassment (sex). 2. Title VII, § 1983 and N.Y. state law discrimination (sex). 3. Title VII and N.Y. state law retaliation. Disposition Below: 1. Summary judgment denied [plaintiff]. 2. Summary judgment denied for one plaintiff [plaintiff]. 3. Summary judgment denied [plaintiff]. Outcome on Appeal: 1. Reversed [defendant]. 2. Affirmed [plaintiff]. 3. Appeal dismissed [plaintiff]. Grounds : 1. Petty administrative behavior (e.g., rudeness, close monitoring, failure to allow employee to use all of her skills, reassignment of duties, moving offices, scrutinizing budget, criticizing for late arrival at meeting) does not rise to level of hostile work environment (neither severe nor pervasive). 2. Although one plaintiff failed to establish prima facie case of discriminatory termination, second plaintiff presented genuine issue of material fact on (1) compensation, where she alleged she was paid less than male predecessors and even subordinate male employees whom she supervised; and (2) failure to promote/removal of supervisory duties, where micromanaging behavior of plaintiff was suggestive of gender bias. Some claims were not adverse employment actions (e.g., office moves, model of assigned vehicle). Evidence of pretext included evidence that men were promoted, given raises and allowed more leeway during the same period. 3. Court had no pendant appellate jurisdiction over retaliation claim.

Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 97 FEP 1684 (2d Cir. 2006). Panel: SACK, Kearse, Stanceu. Claim on Appeal: 1. Title VII and N.Y. state law harassment (sex). 2. Title VII and N.Y. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds : 1. Summary judgment proper on quid pro quo harassment claim, where employee was unable to identify any loss of material benefits or raises as a result of not having sex with her manager. But summary judgment was error on hostile work environment claim, where manager regularly informed employee that she was “sleeping with the wrong employee,” propositioned on a regular basis, physically grabbed multiple times, and employee ultimately had to demand partition around her work space. Jury could find such behavior was severe or pervasive. Hostile work environment claims present mixed question of law and fact that is well-suited for jury decision. Derivative claim under state law against harassment for aiding and abetting a hostile work environment likewise survives summary judgment. 2. Change in reporting structure was not adverse employment action.

Leibowitz v. Cornell Univ., 445 F.3d 586, 97 FEP 1574 (2d Cir. 2006). Panel: Per Curiam [Kearse, Miner, Hall]. Claim on Appeal: ADEA Title VII and N.Y. state law relinquishment of tenure, and Equal Pay Act. State law contract claims (not discussed here) . Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in requiring employee to plead each element of prima facie case in complaint. Faculty member alleged adverse employment action by allegation that school ordinarily indefinitely renewed contracts of faculty of her title (Senior Extension Associate II), but that school allowed five-year term to lapse without renewal. Fact that she retired does not nullify claim, because she could demonstrate that she would not have retired if her employment had been treated as tenured. EPA claim sufficient where employee argues only that she was paid less than men for similar work.

Bradley-Baker v. The Home Depot, 445 F.3d 541, 97 FEP 1569 (2d Cir. 2006) . Panel: MINER, Kearse, Hall. Claim on Appeal: Title VII reasonable accommodation (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Store employee who requested Sunday’s off for religious observance presents genuine issue of material fact regarding (1) bona fide religious belief, where his pastor supplied an affidavit demonstrating belief that adherents should take Sundays off from work and employee averred his own sincere belief in the sacredness of the Sabbath; (2) making request for accommodation, where employee set forth on numerous occasions that he did not want to work on Sundays for religious reasons and employer even offered to accommodate that request; (3) reasonable accommodation, where employer offered only Sunday mornings off, which did not respond to the employees principal reason for seeking the entire day off; and (4) whether other proposed accommodations (part-time employment or trading shifts) were reasonable or instead placed an undue burden on the employer.

Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 17 AD Cases 1453 (2d Cir. 2006) . Panel: MINER, Cabranes, Curtin. Claim on Appeal: ADA termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : District court erred in holding that where an employee issues a Thereat of physical harm, he or she is as a matter of law not a “qualified individual” by operation of the “direct Thereat” defense (42 U.S.C. § 12113(a)). “Direct Thereat” applies only to cases where the employee challenges allegedly discriminatory application of qualification standards, as opposed to routine disparate treatment (29 C.F.R. 1630.15(a), (b)). Summary judgment against employee diagnosed with major depression, affirmed on the alternative ground that terminating employee for making Thereat was legitimate, non-discriminatory basis for termination, and employee did not present genuine issue of material fact that disability was actual or mixed motive.

Francis v. Elmsford school Dist., 442 F.3d 123, 97 FEP 1235 (2d Cir. 2006). Panel: KEARSE, Miner, Hall. Claim on Appeal: ADEA transfer. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Letter from state agency did not constitute “right-to-sue letter” that triggered running of 90-day period to file ADE action, where (under 29 U.S.C. § 626(e)) only a letter from the EEOC triggers the limitations period, and the notice did not inform the employee that the charge was dismissed.

Holowecki v. Federal Express Corp., 440 F.3d 558, 97 FEP 1037 (2d Cir. 2006) . Panel: POOLER, Kearse, Calabresi. Claim on Appeal: ADEA constructive discharge. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: ADEA claim of pattern or practice against older couriers, assigning unreasonable performance goals with expectation of terminating those that are too slow. One employee’s Intake Questionnaire could be treated as a “charge” for purposes of exhaustion per 29 U.S.C. § 626(d), even if it was never delivered to the employer. Intake Questionnaire included basic information deemed sufficient under 29 C.F.R. § 1626.3, .6, and .8 (name of employer, general description of acts). Intake Questionnaire also expressed “manifest intent” in invoke agency’s investigatory and conciliatory processes. EEOC need not take action on ADEA charge before employee files suit. That employee later filled out another charge form does not vitiate effect of Intake Questionnaire. Eleven other non-filing employees could piggyback on individual charge. Two other employees who did file charges could not piggyback, but could proceed on their own charges, provided that they filed suit with in 90 days of receiving notice of right to sue; case remanded to evaluate the limitations question.

Ferraro v. Kellwood Co., 440 F.3d 96, 17 AD Cases 1160 (2d Cir. 2006) . Panel: WALKER, Jacobs, Hall. Claim on Appeal: 1. N.Y. state and N.Y.C. law disability demotion. 2. N.Y. state and N.Y.C. law disability harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee filed to produce evidence that the proffered reasons for demotion/reduction in salary (merger made employee’s job redundant; reorganization was designed to make unit more efficient; employee was partially responsible for poor sales in her unit) were pretextual. 2. District court erred in setting out Faragher/Ellerth defense, holding that employee must show that the tangible employment action must be motivated by the harassment. It thus wrongly precluded the employer from invoking defense. Employer had policy to prevent and correct harassment promptly, undisputed by employee. On second element, employee could not avoid making complaint on ground that employer “ignored or resisted” a prior complaint about the same supervisor by another female employee; prior complaint was not specifically about sex harassment, but a single incident of abusive behavior.

Patterson v. County of Oneida, 440 F.3d 104, 97 FEP 1057 (2d Cir. 2006) . Panel: KOELTL, McLaughlin, Sack. Claim on Appeal: Section 1981/1983 and N.Y. state law harassment. N.Y. state tort claim (not discussed here). Disposition Below: Judgment following a jury trial ($1 nominal compensatory for discrimination; $100,000 compensatory for tort of intentional infliction of mental distress, $20,000 punitive; $18,885 fees/costs) [plaintiff]. Outcome on Appeal: Affirmed, except punitive damages remitted to $10,000 [plaintiff]. Grounds: African-American employee experienced about a dozen racial slurs in four months, and was once attacked with mace and shaving cream by co-workers and called a “white man with an afro.” No need to reach state action issue in case, where verdict could be affirmed under § 1981 and state law. Potential conflict of interest in joint representation of individual officers and department not grounds for reversal where officer obtained substitute counsel for trial, and prior counsel had advanced all possible defenses on behalf of individual defendants before trial (including qualified immunity). Defense witnesses properly excluded for defendant’s failure to observe Fed. R. Civ. P. 26(a)(3) disclosure., identifying witnesses only ten days before trial four years after case was first filed. Plaintiff counsel’s suggestion in closing argument that police department would pay verdict was mitigated by prompt curative instruction that agency was not a defendant. Monetary awards affirmed, in spite of lack of expert testimony. Punitive damage award did not violate due process, but was excessive in light of individual defendant’s straitened economic circumstances. On plaintiff’s cross-appeal, although district court did not abuse discretion by reducing fee award based on partial success, it did abuse discretion (1) by failing to state basis for reducing fees by two-thirds and (2) reducing hourly lodestar rate to $175.

Hankins v. Lyght, 438 F.3d 163, 97 FEP 868 (2d Cir. 2006). Panel: WINTER, Parker [SOTOMAYOR, dissenting]. Claim on Appeal: ADEA termination. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Religious Freedom Restoration Act abrogated judge-made “ministerial exception” to ADEA, establishing new “compelling interest” and “least restrictive means” standards. Case remanded for revaluation of minister’s age discrimination claim under RFRA.

Feldman v. Nassau County, 434 F.3d 177, 97 FEP 449 (2d Cir. 2006). Panel: CABRANES, Newman, Hall. Claim on Appeal: ADEA failure to hire. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Section 58(1)(a) of N.Y. Civil Service Law, with maximum qualification age of 35 for hiring, meets law enforcement exception of ADEA, 29 U.S.C. § 623(j)(2), and was no alleged to be subterfuge to violate a different provision of Act.

Aurecchione v. schoolman Transportation System, Inc., 426 F.3d 635 (2d Cir. 2005). Panel: OAKES, Calabresi [KEARSE, concurring dubitante]. Claim on Appeal: Title VII promotion (sex). Disposition Below: Rule 12(b)(1) dismissal [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Jurisdictional defect in action seeking attorneys fees for time spent on stat agency level (i.e., failure to cite Title VII in the complaint) could have been cured by amendment under 28 U.S.C. § 1653, which provides that “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”

Arculeo v. On-Site Sales & Marketing, LLC, 425 F.3d 193, 96 FEP 966 (2d Cir. 2005). Panel: LEVAL, Walker, Lynch. Claim on Appeal: Title VII and N.Y. state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Assuming that circuit would allow aggregation in the joint employment context to meet the fifteen-employee requirement, summary judgment affirmed an alternative ground that plaintiff did not shown circumstances that would justify a finding that either of two employers met 15-employee minimum, where payroll records of one company revealed only eight employees, second company also had fewer than fifteen, and there was no evidence of joint control over employees. Court leaves open whether to recognize joint employer theory under Title VII.

Fuller v. J.P. Morgan Chase & Co., 423 F.3d 104, 17 A.D. Cases 141 (2d Cir. 2005). Panel: JACOBS, Kearse, Straub. Claim on Appeal: ADA benefits. ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reaffirms circuit law that ADA does not require that mental health insurance coverage be in parity with non-mental health coverage.

Capobianco v. City of New York, 422 F.3d 47, 17 AD Cases 1 (2d Cir. 2005) . Panel: CHIN,.Pooler,.Sotomayor. Claim on Appeal: ADA, NY. state and N.Y.C. law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Sanitation worker prone to night blindness, and medically restricted to day driving only, was fired from job that required driving a truck. Memo that memorialized termination made specific note of the medical restriction. On appeal, panel finds that district court erred in excluding plaintiff’s medical reports sua sponte, and finding that he is not disabled. Defendant waived hearsay objection to reports by attaching them as exhibits to its own motion, FRE801(d)(2)(B). There were also admissible as non-hearsay because they appeared in his personal file and were relied upon by decision-makers. Exclusion was prejudicial because plaintiff had no notice that they might be excluded. On merits, plaintiff established that his condition substantially limited has major life activity of seeing (e.g., this condition afflicts only 1 in 10,000, plaintiff needs 100X illumination to see at night, must plan carefully or avoid activities that might take place in dim light). Relies on 29 C.F.R. § 1630.2(j)(2). Conflict between plaintiff’s declaration and his deposition testimony about his ability to drive at night was illusory. Claimed of perceived disability also presents genuine issue of material fact, because records show that his disability was specifically invoked to support termination, despite that he performed his job satisfactorily.

Jute v. Hamilton Sunstrand Corp., 420 F.3d 166, 96 FEP 481 (2d Cir. 2005) . Panel: MESKILL,. Newman, Cabranes. Claim on Appeal: Title VII and Conn. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: The participation clause of Title VII is broad enough to cover a voluntary witness who appears in a co-worker’s witness list, but never testifies. The district court erred in granting summary judgment on the following grounds: (1) omission of one of the alleged acts of retaliation against Jute in her EEOC charge did not preclude her pursuing a claim on it, because it was reasonably within the scope of what the EEOC might have investigated; (2) time-barred acts of retaliation were admissible background evidence of the timely-charged events, to demonstrate chain of events beginning the day after the employer learned about her being on the witness list; and (3) circumstantial evidence is sufficient to establish that a false job reference cost the employee a job at another business, and the employee need not obtain direct evidence that the false statement cause the employer to retract a previously-expressed offer.

Cross v. New York City Transit Authority, 417 F.3d 24, 96 FEP 239 (2d Cir. 2005). Panel: RAGGI, Sotomayor,. Hall. Claim on Appeal: ADEA, NY. state and N.Y.C. law demotions. Disposition Below: Judgment following a jury trial (plaintiff Cross, $2,000 back pay, $50,000 emotional distress damages; plaintiff Cross $2,500 back pay, $50,000 emotional distress damages; liquidated damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff], except entry of liquidated damages against supervisor. Grounds: Plaintiffs – who unsuccessfully sought promotion from helpers to controllers – presented sufficient evidence to support verdict by presenting their prima facie case (which the employer conceded) and evidence that (1) the employer initially took steps to avoid granting promotions, which were successfully grieved by the union; (2) after promotion, employer denied them essential training (which was provided to younger employees) without explanation; (3) managers made disparaging remarks about their ages; and (4) after demotion, defendants placed younger employees in a structured training program. Evidence of willfulness included the age-hostile remarks, deliberate failure to give plaintiffs training and union’s complaints on the employees’ behalf. Although Supreme Court has already held that liquidated damages are punitive in nature, ADEA expressly permits punitive damages against public employers, waiving their common-law immunity. Liquidated damages against individual manager was vacated; there was no statutory basis for entry of judgment against him. Court affirms denial of remittitur of $50,000 award to each plaintiff for emotional distress. Although each plaintiff supported claim only by their own testimony about humiliation and anger, such lay testimony is enough.

Broadnax v. City of New Haven, 415 F.3d 265, 96 FEP 79 (2d Cir. 2005). Panel: KATZMANN, Calabresi, B.D. Parker. Claims on Appeal: Title VII termination, retaliation and harassment (sex), Equal Protection and First Amendment. Disposition Below: Judgment following a jury trial (total damages $1,446,772, including $965,571 lost wages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds : Burden of mitigation defense is on employer, including proof that plaintiff failed to make a reasonable search for alternative employment. Employer could not rely on single line of testimony that plaintiff did not have “plans about what to do next” to support contention that employee admitted not searching for work. Employer waived challenge to jury awarding back wages by not objecting to jury demand

Fairbrother v. Morrison, 412 F.3d 39, 95 FEP 1770 (2d Cir. 2005). Panel: KATZMANN, Newman, Pooler. Claims on Appeal: 1. Title VII retaliation. 2. Title VII harassment (sex). Disposition Below: 1. Judgment as a matter of law [defendant]. 2. Judgment as a matter of law [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds : 1. Only alleged adverse employment action (an unsatisfactory review) was insufficient as a matter of law. $20,000 damage award was not apportioned and record was unclear on basis for award; damage award remanded for reconsideration by district court judge. 2. District court erred by relying primarily on testimony bearing on the plaintiff’s credibility, while under Fed. R. Civ. P. 50, judge should have made credibility assessments against the moving party. District court also erred in determining that there was no evidence that plaintiff’s terms of employment were altered. Where harassment is severe or pervasive, it is deemed to alter terms; here, there was daily name-calling, routine discussions and inquiries about sex, pervasive pornographic material, use of staff bulletin boards for posting sex jokes, and evidence that the plaintiff was subjectively offended. Record also presented basis for imputing liability to employer: plaintiff testified that she notified There people in authority about problem and no steps were taken to correct it, and supervisor’s personal involvement in harassment despite that plaintiff complained about it. Employer, to meet burden of proof, would have had to conclusively established that plaintiff did not complain, which it failed to do. On remand, district court may consider whether to submit case to new trial, Fed. R. Civ. P. 59(a).

Woodman v. WWOR-TV, 411 F.3d 69, 95 FEP 1601 (2d Cir. 2005). Panel: RAGGI, Pooler, Sack. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiff failed to present genuine issue of material fact that decision maker was aware that employee was significantly older than employee who continued her duties, and hence did not make out a prima facie case. Knowledge could not imputed to employer based on its knowledge that the plaintiff was in the protected class, because age discrepancy is the relevant fourth factor under O’Connor. Although this issue will usually be undisputed (employers routinely maintain age information or are aware of age information from personal contact), here she was terminated by an acquiring corporation that lacked such background facts (e.g., personnel lists lacked age, length of service alone was not a valid proxy, no valid evidence calling executives’ credibility into doubt). Nor did plaintiff present evidence that defendant was aware of a high probability that she was significantly older but consciously avoided learning the facts. Suggestion that her age was “common knowledge” throughout the industry too conclusory to attribute to decision makers. Omission of ADEA in purported release signed by plaintiff did not support inference that acquiring company knew about age. Knowledge of former employer could not be attributed to acquiring company under “joint employer” of successor liability theory.

Forsyth v. Federation Employment and Guidance Service, 409 F.3d 565, 95 FEP 1545 (2d Cir. 2005). Panel: CARDAMONE, Feinberg, Parker. Claims on Appeal: Title VII pay (race and national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Reversal not mandated by local rule of district court requiring that pro se litigant be warned expressly of consequences of failing to respond to summary judgment, where plaintiff was represented when the summary judgment motion was filed, and for 13 months afterwards and record as a whole established that plaintiff was aware of his obligation to respond to the motion. (i.e. he filed a detailed response after his attorneys were discharged from the case). District court erred in analysis of limitations issue; allegations that pay was set on discriminatory scale is actionable for each paycheck, Bazemore v. Friday, 487 U.S. 385 (1986), and is not a present effect of past discrimination. Morgan did not impliedly overrule Bazemore. Summary judgment affirmed on alternative basis that plaintiff only proved that his salary was lower that other employees’ pay, but did not establish other elements of prima facie case.

Moore v. Consolidated Edison Co., 409 F.3d 506, 95 FEP 1441 (2d Cir. 2005). Panel: SOTOMAYOR, Katzmann, Cedarbaum. Claims on Appeal: Section 1981, N.Y. state and city law harassment (race and sex) and retaliation. Disposition Below: Preliminary injunction denied, Fed. R. Civ. P. 65 [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Case was not rendered moot for jurisdictional purposes because plaintiff was terminated; exception to mootness rule exists where court could order reinstatement. District court did not abuse discretion in denying relief negative evaluation of plaintiff was insufficient to demonstrate irreparable harm and claim of psychological harm is too speculative to warrant preliminary relief. Court rejects district court’s reasoning that retaliatory termination is always compensable in money damages, because of deterrent effect on other employees’ federal rights. But plaintiff provided no evidence that other employees would be inhibited. District court did not abuse discretion in denying evidentiary hearing.

Legnani v. Alitalia Linee Aeree Italiane, S. P. A. (Alitaliairlines), 400 F.3d 139, 95 FEP 604 (2d Cir. 2005) . Panel: Per Curiam [Walker, Pooler, Wesley]. Claims on Appeal: Title VII retaliatory discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed for one plaintiff [plaintiff]. Grounds : Pro se plaintiff not precluded from filing claim of retaliation that arose after events claimed in prior lawsuit. Although plaintiff attempted to amend prior action to include retaliation claim, district court in first action never ruled on the merits of the claim and denied the amendment without explanation.

Dawson v. Bumble & Bumble, 398 F.3d 211, 95 FEP 365 (2d Cir. 2005) . Panel: POOLER, Straub, B.D. Parker. Claims on Appeal: Title VII, N.Y. and N.Y.C. harassment, promotion termination (sex and sexual orientation). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Lesbian who does not conform to gender norms fails to state a claim for discrimination or harassment at Manhattan hair salon. She was fired, assertedly because of poor performance in training program. Sexual orientation claims not cognizable under Title VII, and while sex stereotyping is prohibited under federal act, plaintiff did not present genuine issue of fact about being singled out for her behavior or appearance on the basis of gender (she was not penalized for her clothes or haircut, she was not expected to adhere to feminine stereotypes). Plaintiff’s subjective self-assessment of her own qualifications not relevant to denial of promotion claim. Occasional comments by male employees were not sufficiently severe or pervasive to constitute harassment, nor did they constitute evidence of discrimination against plaintiff because she was a lesbian.

Dotson v. Griesa, 398 F.3d 156, 95 FEP 248 (2d Cir. 2005) . Panel: RAGGI, Kearse, Straub. Claims on Appeal: Section 1981 and Bivens race discrimination. Disposition Below: Dismissal under Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee in the federal judiciary could not bring civil action against court. Section 1981 claim barred because termination was taken under color of federal, not state law. Plaintiff also lacked remedy under Civil Service Reform Act of 1978 (CSRA), which furnished comprehensive mechanism for resolving federal employee claims but expressly excluded workers in the judiciary, who fell within “excepted service” category. Bivens damage action for federal employees precluded by CSRA; Congress deliberately avoided placing judiciary under that act, and judicial branch developed internal mechanism for adjudicating and reviewing adverse employment decisions, and CSRA underwent major amendments that considered but ultimately rejected extension of act to judiciary. Request for injunctive relief (i.e. reinstatement) also rejected. Although sovereign immunity did not preclude action against judicial officers for purely prospective relief, circuits are split over whether such an action is precluded by the CSRA. Court sides with circuits finding that CSRA is preclusive.

Gajda v. Manhattan & Bronx Surface Transit Operating Authority, 396 F.3d 187, 16 A.D. Cases 645 (2d Cir. 2005). Panel: Per Curiam [Kearse, Carbranes, Sack]. Claims on Appeal: ADA medical inquiry. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer demonstrated business necessity to inquire about HIV status of bus driver under 42 U.S.C. § 12112(d)(4) where employee’s request for leave admitted that he was “unable to perform functions of my position” and would “need intermittent leave . . . for lifetime.”

Jacques v. DiMarzio, Inc., 386 F.3d 192, 16 A.D. Cases 1 (2d Cir. 2004). Panel: JACOBS, Walker, Stanceu. Claims on Appeal : 1. ADA termination (“regarded as” under section 12102(2)(C))). 2. ADA termination (disability discrimination or “record of,” sections 12102(2)(A) and (B)). Disposition Below: 1. Judgment after a jury trial, $190,000 damages ($50,000 compensatory and punitive, $140,000 back pay and pre-judgment interest) [plaintiff]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Vacated and remanded [defendant]. 2. Affirmed [defendant]. Grounds: 1. Defendant forfeited sufficiency of the evidence grounds by failing to present post-verdict motion under Fed. R. Civ. P. 50(b). Nevertheless, district court erred in instructing jury that the “ability to interact with others is a major life activity” and that jury could find that plaintiff was perceived by employer as “having relations with others that were characterized on a regular basis by severe problems.” (Defendant failed to make specific objection to the charge, Fed. R. Civ. P. 51, but court took notice of previous briefing of same issue on summary judgment.) Court finds that “interacting with others” may constitute a major life activity under the ADA, noting split in the circuits, but rejects Ninth Circuit’s framework in favor of narrower conception that plaintiff’s disability must “severely limit[] the fundamental ability to communicate with others, i.e., to initiate contact with other people and respond to them, or to go among other people (citing examples of autism, agoraphobia depression). Case remanded for renewal of summary judgment or new trial based on new legal standard. 2. Symptoms of bipolar disorder did not substantially limit plaintiff in major life function of caring for oneself.

Petrosino v. Bell Atlantic, 385 F.3d 210, 94 FEP 903 (2d Cir. 2004). Panel: RAGGI, Jacobs, Sack. Claims on Appeal: 1. Title VII, N.Y. state and N.Y.C. law harassment (sex). 2. Title VII, N.Y. state and N.Y.C. law promotion (sex). 3. Title VII, N.Y. state and N.Y.C. law constructive discharge Sanctions motion (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Under Morgan , limitations period for harassment claim stretches back to 1990, because some allegedly gender-hostile actions occurred within 300 days of filing EEOC charge. Plaintiff established genuine issue of material fact regarding “severe or pervasive” harassment, where record established nine-year campaign of grabbing, disparaging remarks about plaintiff’s body, graffiti, sexist comments by supervisors (e.g. frequent references to being “on the rag”). That workplace was rough, mostly male environment did not excuse behavior. That men and women were both subjected to same environment not determinative because women were demeaned collectively because of gender and conveyed impression that women did not belong there. Plaintiff also established genuine issue of material fact about employer’s legal responsibility for harassment under standard of reasonable care, where her repeated complaints were either not addressed or met with hostility. 2. Plaintiff failed to satisfy prima facie case for official manager position because she could not prove that she applied, formally or otherwise, for the promotions that she knew were vacant in her department. Moreover, she could not show that any acting manager jobs opened up within the limitations period. Finally, assignments to act as a temporary substitute for an absent manager is not a “promotion” within the protection of Title VII (not adverse employment action). 3. Plaintiff failed to show that events within the limitations period of her charge ratcheted up to such a degree as to compel her to resign. No evidence that employer wanted the plaintiff to leave, or that she lost any tangible benefits of employment. Also, employee had options she did not use (such as rejecting a transfer to a facility known to be hostile). Expressing doubt whether constructive discharge can be predicated on reduced promotion opportunities because of a reassignment.

Patterson v. County of Oneida, 375 F.3d 206, 94 FEP 129 (2d Cir. 2004). Panel: KEARSE, Cabranes, Katzmann. Claims on Appeal: 1. Title VII/§§1981 and 1983 disparate treatment and termination (race). 2. Title VII/§§1981 and 1983 harassment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff probationary corrections officer failed to rebut litany of reasons proffered for plaintiff’s termination (including accredible accusation that plaintiff assaulted a prisoner, report of off-duty illegal drug use, and report that plaintiff disclosed identity of an undercover officer to the target of an investigation). Anonymous affidavit from separate litigation and conclusory affidavit from co-worker that African-American guards were selectively disciplined held inadmissible. Evidence that supervisors had issued racial epithets once over a seven-year period not probative of discrimination. Hearing testimony and affidavits in a different civil rights case were inadmissible hearsay (FRE804(b)(1)). 2. Title VII claims properly dismissed as untimely. Regarding § 1981 claim, governmental defendants and defendants sued in official capacity were not liable; no evidence was presented of a municipal policy or custom (of failure to investigate or failure to train), in light of plaintiff’s failure to report incidents of harassment. Plaintiff presented genuine issue of material fact regarding two individual defendants in their individual capacity that their alleged conduct was severe or pervasive (racial epithets, failure to return salutes, tackled and maced plaintiff). Panel expresses doubt about whether some of the alleged harassment constitutes state action, but notes that defendant did not brief this issue.

Abrahamson v. Board of Education of the Wappingers Falls Central school Dist., 374 F.3d 66, 94 FEP 25 (2d Cir. 2004) . Panel: B.D. PARKER, Straub, Stanton. Claim on Appeal: ADE and N.Y. state law benefits. Disposition Below: Summary judgment for plaintiffs [plaintiffs]. Outcome on Appeal: Affirmed in substantial part [plaintiffs]. Grounds: school district collective bargaining agreement offered Salary Elective Program, which awarded teachers meeting certain service requirements $20,000 if they elected retirement the first year they became eligible. The policy was amended to permit a new option (to accept $7,000 per year for There years, with no obligation to retire), but only to teachers who became newly eligible to retire during the term of the amended CBA. Court affirmed summary judgment that failure to extend the amended plan with the new option to the more senior teachers who did not retire under the former plan violated ADEA, because eligibility requirements on their face or by operation deprived teachers ages 55 or over from receiving new benefit. Amendment was not a bona fide voluntary early retirement plan because it rewarded retention, rather than retirement. Injunctive relief that allowed school district option of eliminating new option, rather than extending it to plaintiffs, not an abuse of discretion. District court erred in holding that plaintiffs were not “prevailing parties” for obtaining injunctive relief only; the enforceable judgment that resulted materially altered the legal relationship between the parties. Opinion leaves open question of whether Title VII “prevailing party” standard applies under the ADEA .

Washington v. County of Rockland , 373 F.3d 310 (2d Cir. 2004). Panel : SOTOMAYOR, Wesley, Pollack. Claim on Appeal: Section 1981 and 1983 retaliatory discriminatory and discipline. First Amendment retaliation and malicious prosecution (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claims of racially discriminatory disciplinary charges time-barred after having been filed more than There years after the last complaint was filed. Filing of charges was discrete act, final as of the filing date, not when the disciplinary decision is concluded and final. No continuing violation of permitted based on such discrete events, nor would court aggregate events occurring to different plaintiffs for timing purposes. Moreover circumstances in case did not warrant abstention while complaints were being adjudicated, because essence of disciplinary charges was distinct from civil rights complaint that the very filing of the charges was racially discriminatory

Grant v. Local 638, 373 F.3d 310 (2d Cir. 2004). Panel: POOLER, Sotomayor, Wesley. Claim on Appeal: Title VII race pattern or practice case. Disposition Below: Consent decree not approved. Outcome on Appeal: Dismissed. Grounds: Court lacked appellate jurisdiction where it was doubtful whether denial had the practical effect of denying injunctive relief, and where intervenors failed to show irreparable harm.

Dawson v. Westchester County, 373 F.3d 265, 93 FEP 1697 (2d Cir. 2004) . Panel: CALABRESI, Van Graafeiland, Leval. Claim on Appeal: Title VII, section 1983 and NY state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff prison guards allege they were subject to harassment by other guards, when warden allowed sexually explicit, humiliating and Threatening letters by prisoners concerning the female guards to circulate among the male guards. Plaintiffs also alleged that no effective remedy was undertaken in spite of timely complaints. Summary judgment reversed. Behavior was severe or pervasive in context of corrections setting, where command structure especially required that the force protect (rather than derogate) the authority of the female guards. Fact that some plaintiffs took extensive, paid disability leave to recover from harassment did not obviate a remedy.

Krohn v. New York City Police Dept., 372 F.3d 83, 93 FEP 1609 (2d Cir. 2004). Panel: FEINBERG, Van Graafeiland, F.I. Parker. Claim on Appeal: Sex harassment under NYC Human Rights Law. Disposition Below: Judgment after jury verdict; punitive damages vacated [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Ordinance does not provide for punitive damages against municipality. (Question on availability of punitive damages under statute previously certified to N.Y. Court of Appeals. Krohn v. New York City Police Dept., 341 F.3d 177, 92 FEP 774 (2nd Cir. 2003)).

Tesser v. Board of Educ. of City school Dist. of City of New York, 370 F.3d 314, 93 FEP 1724 (2d Cir. 2004). Panel: SACK, Calabresi, F.I. Parker. Claim on Appeal: Title VII and NYC Human Rights Law religious discrimination and retaliation. Disposition Below: Judgment after jury verdict [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court rejects evidentiary challenges to trial. Admission of plaintiff’s family tax returns (in rebuttal to her expert witness’s damage report), with limiting, curative instruction to jury about the document bearing only on the expert’s testimony (that receiving lump-sum payment would boost her into higher tax bracket), deemed harmless. Inferences suggested by defendant’s counsel in closing argument (that plaintiff erased part of a tape and “missing witness” argument concerning one of her treating doctors) did not warrant new trial, where plaintiff was allowed to argue these points in closing statement and an appropriate curative instruction was given.

Rodal v. Anesthesia Group of onndaga, P.C., 369 F.3d 113, 15 A.D. Cases 973 (2d Cir. 2004). Panel: RAGGI, Sack, Sotomayor. Claim on Appeal: AD and NY state law reasonable accommodation claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff physician sought no-nights, no-weekends schedule to accommodate cancer Genuine issues of material fact exist both on standing and undue burden. Plaintiff furnished sufficiently rational explanation of his affidavit (filed in parallel state lawsuit) to avoid judicial estoppel; affidavit left room to argue that doctor could have performed his duties with reasonable scheduling accommodations. Witnesses also flatly contradicted each other on whether plaintiff requested accommodation. Fact issue presented on whether evening and weekend work constitute essential functions at work, where only concern defendant expressed in negotiations with plaintiff was the impact on his compensation. “Undue burden” affirmative defense not raised in district court. Opinion points to recent Supreme Court decision in Clackamas Gastroenterology Assoc., P.C. v. Wells as possible alternative basis for summary judgment (re whether doctor was actually an “employee” in his own group practice).

Feingold v. New York, 366 F.3d 138, 93 FEP 1573 (2d Cir. 2004). Panel: F.I. PARKER, Calabresi, Sack. Claim on Appeal: 1. Title VII harassment (v. state agency) (religion, race); 2. Title VII termination and retaliation (v. state agency) (religion, race); 3. Section 1983, NYC Human Rights Law and NY state law discrimination, harassment and retaliation (v. state agency); 4. Section 1983 NYC Human Rights Law and NY state law discrimination, harassment and retaliation (v. individual defendants) (religion, race, sexual orientation); 5. Section 1983 NYC Human Rights Law and NY state law discrimination (v. NY state, unnamed defendants); First Amendment retaliation (not discussed here). Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]; 3. Summary judgment [defendant]; 4. Summary judgment [defendant]; 5. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]; 2. Reversed [plaintiff]; 3. Affirmed [defendant]; 4. Reversed [plaintiff]; 5. Affirmed [defendant]. Grounds: 1. Plaintiff (who was white, Jewish and gay) ALJ at traffic court presented genuine issue of material fact about whether he suffered severe or pervasive misconduct by co-workers, where others regularly mocked his name, spoke frequently about their Christian beliefs (or denigrated Judaism), called him a “fag or “faggot,” declined to train him and dumped their work on him, while another probationary ALJ who was African-American was not treated the same way. Failure of superiors to act on timely complaints imputed liability for harassment to employer. 2. Plaintiff raised genuine issue of material fact that others who committed comparable violations (non-suiting two complaints where the police officer left the hearing room ) were not disciplined, let alone fired, and that the not guilty adjudications were in fact consistent with instructions given by superiors. Fact that decision makers included Jewish ALJ does not weigh against the claim, because plaintiff’s outspokenness set him apart in the office. 3. Claimed barred by the Eleventh Amendment and sovereign immunity. 4. Plaintiff presented sufficient evidence of the individual defendant’s having “actually participated” in the conduct giving rise to the claims. 5. Claimed barred by the Eleventh Amendment and sovereign immunity.

Gold v. Deutsche Aktiengesellschaft , 365 F.3d 144, 93 FEP 1125 (2d Cir. 2004). Panel: FEINBERG, Kearse, Raggi. Claim on Appeal: Title VII sex harassment. Disposition Below: Dismissal after arbitration proceedings [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No grounds for finding form U-4 arbitration clause invalid, where plaintiff claimed that he did not understand the arbitration provision and that employer falsely certified that it had furnished NASD rules. Panel reaffirms that Title VII claims are arbitrable.

Back v. Hastings on Hudson Union Free school Dist., 365 F.3d 107 (2d Cir. 2004). Panel: CALABRESI, Winter, Katzmann. Claim on Appeal: §1983 and N.Y. state law denial of tenure case (equal protection sex discrimination). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Reaffirming vitality of “sex-plus” jurisprudence, panel finds genuine issue of material fact whether plaintiff’s supervisors failed to promote her into tenure on the ground that she was a mother with young children. “[S]tereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive.” Supervisors had made statements that employee could not “be a good mother” and work long hours, or lacked sufficient “commitment” because she had “little ones at home.” Comments regarded as “direct evidence,” and thus the supervisors’ proffer of alternative reasons for denying tenure (parental complaints, deficient administrative skill) , does not foreclose a trial. In any event, the proffered reasons were weakly documented and possibly manufactured (supervisors who urged she not be given tenure suddenly gave plaintiff lower ratings and discouraged parents from submitting letters of support). That district historically hired predominantly female candidates, and that the large majority of them had children at home, not material where plaintiff had administrative job with different demands. Court finds one decision maker immune because there was no evidence that he was motivated by gender or was deliberately indifferent, and district was immune because there was no evidence that it maintained policy or custom of discrimination. No qualified immunity for supervisors.

Mormol v. Costco Wholesale Corp., 364 F.3d 54, 93 FEP 1045 (2d Cir. 2004). Panel: CABRANES, Oakes, Kearse. Claim on Appeal: Title VII and N.Y. state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff suffered no adverse employment action (withdrawn disciplinary notice, called back from vacation, reduced hours without lost wages). Manager’s two attempts to sexually proposition plaintiff in writing and aborted attempt to place complaint in her file not severe or pervasive.

Sanders v. New York City Human Resources Admin., 361 F.3d 749, 93 FEP 720 (2d Cir. 2004). Panel: CARDAMONE, Jacobs, Pooler. Claim on Appeal: 1. Title VII discrimination (sex, race); 2. Title VII harassment. Disposition Below: 1. Judgment after jury trial [defendant]; 2. .Judgment after jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]; 2. Affirmed [defendant]. Grounds: 1. Noting circuit split on meaning of adverse employment action. While negative job evaluation may be an adverse employment action in some instances, jury could find that it was not, even though it temporarily stalled a promotion. Jury could also find that male-only meetings were not adverse employment action where they did not involve plaintiff’s duties; 2. Testimony by agency employees who conducted internal investigation and concluded that plaintiff suffered retaliation is admissible as non-hearsay admission, but is circumstantial rather than direct evidence. Statement by agency employee that actions of plaintiff’s supervisor were retaliatory and prohibited by law could be excluded under FRE403. Harmless error to instruct jury on pretext method of proof [also a split in the circuits on this issue].

Wilson v. Nomura Securities Int’l, Inc., 361 F.3d 86, 93 FEP 841 (2d Cir. 2004). Panel: WINTER, B.D. Parker, [Jon. O. Newman, dissenting]. Claim on Appeal: Title VII and N.Y. state law discrimination. Disposition Below: Award of fees upon Rule 68 offer of judgment denied under Title VII [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Offer that included “all costs available under all local, state or federal statutes” was inclusive of fees. Rule not changed by fee provision for “mixed-motive” cases under 42 U.S.C. §2000e-5(g)(2)(B). Same conclusion under New York City Human Rights Act, because despite different language (fees are not deemed “costs” under local law), those claims were intertwined with the Title VII.

Wynder v. McMahon, 360 F.3d 73, 93 FEP 596 (2d Cir. 2004). Panel: CALABRESI, Walker, Cabranes. Claim on Appeal: Title VII discrimination and other state and federal statutes (race). Disposition Below: Dismissed upon complaint under Rule 41(b) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Civil rights complaint that states facts underlying claims and identifies defendants is sufficient under Rule 8, and plaintiff need not separate claims into individual counts against specific defendants. Court could neither, under authority of Rule 41(b), interpose order that demanded more specificity than required by Rule 8, nor dismiss a non-compliant complaint with prejudice.

United States v. City of New York, 359 F.3d 83, 93 FEP 359 (2d Cir. 2004). Panel: POOLER, Gleeson, [Jacobs, dissenting]. Claim on Appeal: Title VII harassment. Disposition Below: Rule 12(b)(6) dismissal [defendant]. Outcome on Appeal: Vacated [plaintiff]. Grounds: Participants in city’s Work Experience Program are “employees” for Title VII purposes.

Palmer v. Occidental Chemical Corp., 356 F.3d 235, 93 FEP 142 (2d Cir. 2004). Panel: JON O. NEWMAN, Oakes, Katzmann. Claim on Appeal: Title VII right of interracial association. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed on other grounds [defendant]. Grounds: Assuming right of interracial association in workplace is protected by Title VII and confers third-party standing on employees to attack hiring decisions, plaintiffs failed to present evidence that they suffered an actual injury (e.g. data on racial hiring patterns, limits on interracial interaction).

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