Jump to Navigation

Second Circuit

Updated to November 5, 2018

Second Circuit

Duplan v. City of New York, 888 F.3d 612, 130 FEP Cases (BNA) 1501 (2d Cir. 2018). Panel: LYNCH, Lohier, Reiss. Claims on Appeal: 1. 42 U.S.C. § 1983 discrimination (sex, race, national origin), retaliation, and harassment. 2. Title VII retaliation and harassment (sex, race, national origin). Disposition Below: 1. Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. 42 U.S.C. § 1983 provides the sole cause of action against state actors alleged to have violated § 1981, noting split in circuits. Construing claims as § 1983 claims, he has failed to allege a policy or custom of misconduct, as is necessary to assert liability against a municipality. 2. "Reasonably related" retaliation claims are excused from the exhaustion requirement only if they arise during the pendency of an EEOC investigation or a timely-filed federal case. Thus, plaintiff could not revive retaliation claims that were not pled in the 2011 charge first filed by the plaintiff, where a right-to-sue was issued but the plaintiff failed to file an action; underlying discrimination claims that were the basis of the original EEOC charge were time-barred. As to claims arising after his 2011 charge but before his 2014 charge, though, plaintiff plausibly alleged causation. Although the gap of several years between the complaint and plaintiff's termination does not establish temporal proximity (on the theory that the termination occurred at the first possible moment), plaintiff alleges persistent behavior throughout the relevant period. "Following his 2011 complaints, his supervisors collectively and persistently discouraged him from remaining at the Department by ostracizing him, giving him insufficient work, and making clear to him that his career would not advance further by denying him every promotion and raise. Those allegations establish a drumbeat of retaliatory animus from which a plausible inference of causation can be drawn." With the post-2014 retaliation, plaintiff plausible alleged an "adverse action" where he pled that "his responsibilities were so diminished shortly after he filed his 2014 complaint, when the City assigned him duties well below his civil service and functional titles and took away his access to the personnel management program, thereby rendering him unable to perform the sole task he had retained from his pre-2011 responsibilities." Panel finds that hostile-work-environment retaliation claim does not meet bar of severe or pervasive.

Chauca v. Abraham, 885 F.3d 122, 130 FEP 1393 (2d Cir. 2018). Panel: Per curiam [Katzmann, Sack, Hall]. Claims on Appeal: NYC Human Rights Law pregnancy discrimination. Disposition Below: Judgment entered after a jury verdict (charge on punitive damages denied) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: After NY Court of Appeals holds, upon certified question, that "the standard for determining damages under the NYCHRL is whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a 'conscious disregard of the rights of others or conduct so reckless as to amount to such disregard,'" case remanded for reconsideration of punitive damages.

Penn v. N.Y. Methodist Hosp., 884 F.3d 416, 130 FEP 1343 (2d Cir. 2018). Panel: BOLDEN, Hall [DRONEY, dissenting]. Claims on Appeal: Title VII (race, religion), § 1981, NY state and city termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: A Hospital could claim ministerial exception for terminating chaplain. Chaplain was undoubtedly a ministerial employee. While hospital was no long associated with church, it continued to provide ministry through its Department of Pastoral Care, and that office by itself warranted coverage under the exception. "The Department of Pastoral Care required chaplains, like Mr. Penn, to distribute Bibles, perform religious rituals and organize and conduct religious services, including Easter services and memorial services ... These services, while not limited to those who are Methodist, are indisputably religious." Exception can apply to nondomination activity.

Zarda v. Altitude Express, Inc., 883 F.3d 100, 130 FEP 1245 (2d Cir. 2018). Panel: KATZMANN, Hall, Chin, Carney, Droney [JACOBS, concurring] [CABRANES, concurring in the judgment] [SACK, concurring] [LOHIER, concurring] [LYNCH, Livingston, dissenting] [RAGGI, dissenting]. Claims on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: A person who alleges employment discrimination on the basis of sexual orientation states a claim for sex discrimination under Title VII.

Soules v. Connecticut, Dep't of Emergency Serv's and Pub. Protection, 882 F.3d 52 (2d Cir. 2018). Panel: JACOBS, Raggi, Droney. Claims on Appeal: ADA, Rehabilitation Act, and Conn. state law discrimination and retaliation. USERRA and constitutional claims (not discussed here). Disposition Below: Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Case properly dismissed on claim preclusion grounds. While termination was not initially alleged in first lawsuit, district court implicitly permitted plaintiff there to amend the initial complaint to address his employment termination. While plaintiff argued that he could not have asserted claims based on his termination because he was required to exhaust administrative remedies, the termination claim was "reasonably related" to the original administrative charge, and so it would not have been foreclosed in the first case, and preclusion applies in administrative proceedings. The requirement to exhaust administrative remedies thus does not disturb holding that the termination claim is barred by claim preclusion.

Hardaway v. Hartford Public Works Dep't, 879 F.3d 486, 130 FEP 1073 (2d Cir. 2018). Panel: POOLER, Winter, Calabresi. Claims on Appeal: Title VII termination (race) and retaliation. Disposition Below: Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Addressing issue of first impression, court holds that administrative exhaustion under Title VII is an affirmative defense, and exhaustion need not be plead or proved by the plaintiff.

Shultz v. Congregation Shearith Israel of the City of New York, 867 F.3d 298, 130 FEP 584 (2d Cir. 2017). Panel: LYNCH, Cabranes, Matsumoto. Claims on Appeal: Title VII, NY state law and NYC law discrimination (sex). FMLA and state tort claims (not discussed here). Disposition Below: Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Cause of action under Title VII can be based on notice to an employee of a termination of employment effective in approximately There weeks, which was later revoked before it became effective. Claim accrues on notice of termination under Ricks. Nevertheless, an employer's good-faith decision to rescind a previously-announced termination of employment, like an offer of restored employment after the termination takes effect, should, and does, have consequences in connection with the calculation of damages. Noting in dicta that the period of time between a notice of firing and its rescission may be so short as to render the termination de minimis.

Figueroa v. Foster, 864 F.3d 222 (2d Cir. 2017). Panel: POOLER, Calabresi, Wesley. Claims on Appeal: New York State Human Rights Law declaratory judgment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Union's duty of fair representation under NLRA does not preempt the application of the NYSHRL when the union is acting in its capacity as a collective bargaining representative, under conflict preemption.

McLeod v. The Jewish Guild for the Blind, 864 F.3d 154 (2d Cir. 2017). Panel: Per curaim [Hall, Lynch, Droney]. Claims on Appeal: Title VII, NY state law, NYC local law harassment (sex). Disposition Below: 28 U.S.C. § 1915(e)(2)(B) dismissal [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Pro se litigant does not forfeit claims under New York state and local discrimination law where she has alleged facts supporting such claims, but fails to check a blank on a form pro se complaint provided by court indicating that she wishes to bring them, where handwritten allegations clearly suggest claims under state and local law.

Fratello v. Archdiocese of New York, 863 F.3d 190 (2d Cir. 2017). Panel: SACK, Lohier, Woods. Claims on Appeal: Title VII and N.Y. state law termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Elementary school principal for Catholic school fell within ministerial exception, where record showed: (1) Though title "lay principal" implies secular role, it simply distinguished such principal from "religious principal" drawn from religious order and is not dispositive and such figure was charged with providing spiritual leadership. (2) She understood that she would be perceived as a religious leader. (3) She performed such duties (e.g., led school prayers, conveyed religious messages in speeches and writings, supervised liturgy at special Masses, expressed the importance of Catholic prayer and spirituality in newsletters to parents). (3) She was evaluated based on her performance of such spiritual duties.

Makinen v. City of New York, 857 F.3d 491, 33 A.D. Cases 772 (2d Cir. 2017). Panel: LOHIER, Sack, Livingston. Claims on Appeal: NYC Human Rights Law termination (disability). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Question certified. Grounds: Court certifies the following question to the New York Court of Appeals: "Do sections 8‐102(16)(c) and 8‐107(1)(a) of the New York City administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?"

VACATED FOR REHEARING EN BANC Zarda v. Altitude Express, 855 F.3d 76, 130 FEP 45 (2d Cir. 2017). Panel: Per curiam (Jacobs, Sack, Lynch). Claims on Appeal: 1. Title VII termination (sexual orientation). 2. N.Y. state law termination (sexual orientation). Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Title VII does not cover sexual orientation as a "protected classification," adhering to Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). 2. No reversible error in admitting evidence that plaintiff was previously fired by the same employer, and an alleged admission by the plaintiff that he believed he was fired for filing for worker's compensation payments. No evidence of prejudice to plaintiff by failing to preclude defense witnesses as a sanction for alleged violation of FRCP37(c)(1). Closing argument statement by defense lawyer that relationship between plaintiff and one of his witnesses as "odd" is not prejudicial. 

Christiansen v. Omnicom Group, Inc., 852 F.3d 195, 129 FEP 1848 (2d Cir. 2017). Panel: Per curiam (Livingston) (KATZMANN, Brodie, concurring separately). Claims on Appeal: Title VII harassment (sexual orientation). Disposition Below: Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Title VII does not cover sexual orientation as a "protected classification," adhering to Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). But case remanded on theory that plaintiff suffered discrimination based on sex stereotyping. Christiansen's complaint identifies multiple instances of gender stereotyping discrimination. Supervisor described him as "effeminate" to others in the office, depicted him in tights and a low‐cut shirt "prancing around," and posted "Muscle Beach Party" party poster depicting plaintiff's head attached to a bikini‐clad female body lying on the ground with her legs in the air.

Stevens v. Rite Aid Corp., 851 F.3d 224, 33 A.D. Cases 557 (2d Cir. 2017). Panel: NEWMAN, Lynch, Droney. Claims on Appeal: AD and N.Y. state law termination. Disposition Below: Judgment after a jury trial ($485,633.00 back pay, $1,227,188.00 front pay to cover a period of 4.75 years, and pecuniary damages of $900,000, later remitted to $125,000) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Pharmacist who suffers from trypanophobia - fear of needles - could not perform essential function of job (providing injections). Company made a business decision to start requiring pharmacists to perform immunizations in stores, revised job description, and made training mandatory. Proposed accommodations fail. Plaintiff proposed that employer offer desensitization therapy, but he points to no authority in support of the ory that employers are obligated to offer employees medical treatment as a reasonable accommodation under the ADA. No evidence that plaintiff would have accepted transfer to less remunerative assistant position. Transferring duty of giving shots to a nurse or other pharmacist not a "reasonable accommodation," because duty is an essential one. Failure of interactive process not a separate claim if no accommodation is otherwise possible.

Sheng v. MTBank Corp., 848 F.3d 78, 33 A.D. Cases 424 (2d Cir. 2017). Panel: WINTER, Kearse, Cabranes. Claims on Appeal: AD and NYSHRL termination. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court abused its discretion in admitting evidence of the reinstatement offer because the offer was, as a matter of law, not unconditional. Rule 408 applied to settlement discussion, and reinstatement was implicitly contingent on release of claim. The district court also erred in sua sponte disqualifying the attorneys, because the disqualification depended on the erroneous admission of evidence relating to the reinstatement offer. For remand, district court did not err in rejecting instruction to jury that failure to engage in interactive process in itself violated ADA. Court lacked jurisdiction over appellant's challenge to the district court's NYSHRL ruling because plaintiff did not present on notice of appeal.

Lawarence v. Sol G. Atlas Realty Co., Inc., 841 F.3d 81, 129 FEP 1229 (2d Cir. 2016). Panel: JACOBS, Livingston, Rakoff. Claims on Appeal: § 1981, Title VII, and NYSHRL discrimination and retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6), and motion to compel arbitration [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Collective bargaining agreement with "No Discrimination" provision that prohibits discrimination on the basis of "any characteristic protected by law" and compels arbitration of "[a]ny disputes under [that] provision," but otherwise fails to cite any statutory provisions or refer to "claims" or "causes of action" does not effectuate a clear and unmistakable waiver of an employee's right to file a civil action.

Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 129 FEP 838 (2d Cir. 2016). Panel: CALABRESI, Walker, Hall. Claims on Appeal: Title VII and NY state law retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff plausibly alleged that co-worker, for retaliatory reasons, used company as cat's paw to terminate her just a day after she filed an internal sex-harassment complaint against him. Applying general principles of agency law, court holds that non-supervisory employee's retaliatory intent can be imputed to employer when, through its own negligence, it gives effect to that intent. Complaint alleged that employer credited forged documents created by co-worker (to implicate plaintiff in alleged consensual sexual relationship), and employer negligently relied solely on the co-worker's account. Plaintiff "pled facts from which a reasonable person could infer that Empress knew or should have known that Gray's accusations were the product of retaliatory intent and thus should not have been trusted. First, the fact that Gray had just learned that he had been accused by Vasquez of sexual harassment provided Gray with an obvious reason to lie and paint Vasquez as the perpetrator rather than the victim." Second, timing of disclosure suspicious (the next morning, alleged harasser was ready with printed-out copies of text messages). Finally, employer refused to inspect plaintiff's phone or listen to her side of the story.

Kovaco v. Rockbestos‐Surprenant Cable Corp., 834 F.3d 128, 129 FEP 792 (2d Cir. 2016). Panel: CABRANES, Newman [LOHIER, concurring]. Claims on Appeal: 1. ADA, Title VII, and ADEA harassment and termination. 2. ADA, Title VII, and ADEA harassment. State law 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. Notice of appeal preserved all claims under the ADA, Title VII, and the ADEA. While District Court's explanation of why plaintiff was estopped from asserting that he was qualified for his position was erroneous (i.e., that SSA's specific factual findings and conclusions were binding), decision affirmed on alternative ground that plaintiff was judicially estopped because he failed to proffer a sufficient explanation of why his assertion that he was qualified for (and was indeed performing in) his position was consistent with his earlier sworn statement to the SSA that he was "unable to work." This bolstered by later jury findings that employee failed to prove that employer failed to provide him with accommodation. 2. Claims abandoned where defendant's summary judgment sought dismissal of all claims, and plaintiff failed to brief hostile work environment.

Walsh v. NYCHA, 828 F.3d 70, 129 FEP 461 (2d Cir. 2016). Panel: RESTANI, Jacobs, Hall. Claims on Appeal: Title VII and N.Y. state law hiring (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute regarding the employer's alleged legitimate, nondiscriminatory reason upon which its decision was based, i.e., plaintiff's admitted lack of experience laying brick and block. Panel skips prima facie case to go to final stage. Following facts produce inference of discrimination: (1) no women were employed by NYCHas bricklayers; (2) male and female candidates had relevant experience as tile setters, and one successful male candidate had no such experience; (3) plaintiff was treated differently in interview process by being asked only one technical question to demonstrate her background, and even then not about tile setting, from which a fact-finder could infer that the hiring decision had already been made against her; (4) one decision maker said she did not get the job because the interviewers "wanted someone stronger" (admissible as a party-opponent exemption to hearsay, FRE801(d)(2)(D)), a gender-based stereotype, and plaintiff's own testimony on this communication is admissible (district court referred to it as "self-serving," which was weighing the inference against her and deciding the merits).

Vangas v. Montefiore Med. Ctr., 823 F.3d 174, 32 A.D. Cases 1535 (2d Cir.  2016). Panel: RESTANI, Jacobs, Hall. Claims on Appeal: 1. NY state law reasonable accommodation. 2. NY city law reasonable accommodation. State statutory claim (not discussed here). Disposition Below: 1. Judgment after a jury trial ($541,000 award) [plaintiff]. 2. Dismissed [defendant]. Outcome on Appeal: 1. Reversed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff was not a "qualified individual" as a matter of law. She was not medically cleared to return to work and admitted that she could not do so. The only possible accommodation was an indefinite extension of leave, not reasonable as a matter of law. 2. City law did not apply because termination decision had no "impact" within city; plaintiff was employed outside of city and had only marginal connection to city office.

Legg v. Ulster County, 820 F.3d 67, 129 FEP 37 (2d Cir. 2016). Panel: PARKER, Lynch, Carney. Claims on Appeal: 1. Title VII discrimination (pregnancy). 2. Title VII harassment. Disposition Below: 1. Judgment as a matter of law [defendant]. 2. Judgment after a jury trial [plaintiff]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [defendant]. Grounds: 1. In light of Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), district court erred in holding that it was not discrimination to limit entry to light duty to guards injured while on duty. Because the employer provided light duty accommodations to other employees who were similar in their ability or inability to work, namely, those who were unable to perform non‐light‐duty tasks as a result of injuries incurred on‐duty, plaintiff could prove discrimination. While the employer argued that it had a legitimate, non-discriminatory reason for its decision (compliance with state law), a jury could find that reason to be pretextual: (1) the employer had never offered that justification at trial; (2) any alleged burden on the jail was contradicted by the history that 176 corrections officers had previously received accommodations, and plaintiff was the one and only pregnant CO who sought light-duty; and (3) plaintiff suffered a significant burden by being placed to a choice of unpaid leave or serious risk to her health. 2. 28-day filing period for post-trial motions was not jurisdictional, so district court should consider on remand whether the late-filing should be excused on equitable grounds.

Cooper v. N.Y. State Dep't of Labor, 819 F.3d 678, 129 FEP 44 (2d Cir. 2016). Panel: Per curiam [Kearse, Cabranes, Chin]. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: The conduct plaintiff opposed - the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims - was neither a "practice made an unlawful employment practice" by Title VII. 42 U.S.C. § 2000e‐3(a), nor one that plaintiff could reasonably have believed constituted a violation.

Graziadio v. Culinary Institute of America, 817 F.3d 415, 32 A.D. Cases 1117 (2d Cir. 2016). Panel: CALABRESI, Lynch, Lohier. Claims on Appeal: AD associational termination. FMLA claim [not discussed here]. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Panel adopts Seventh Circuit's decision in Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004), which classified "[t]hree types of situation[s]" that would support a claim of associational discrimination: 1) "expense," in which an employee suffers adverse action because of his association with a disabled 6 individual covered by the employer's insurance, which the employer believes (rightly or wrongly) will be costly; 2) "disability by association," in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and 3) "distraction," in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person. Plaintiff with child with diabetes fails to show that employer believed that she would be "distracted." No genuine dispute that plaintiff was terminated because her employer felt she had taken too much leave from work to care for her sons.

Village of Freeport v. Barrella, 814 F.3d 594, 128 FEP 1345 (2d Cir. 2016). Panel: CABRANES, Leval, Lohier. Claims on Appeal: Title VII and § 1983 promotion. Disposition Below: Judgment after a jury trial ($150,000 back pay, $1,000,000 lost future pay, and $200,000 in punitive damages against one defendant) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Comparator employee was Cuban-born, but identified as "white." Court holds "for purposes of Title VII, 'race' encompasses ethnicity, just as it does under § 1981." It rejects the argument that "race" is a question of fact for the jury, and holds that "[t]he meaning of the word 'race' in Title VII is, like any other question of statutory interpretation, a question of law for the court." While this legal conclusion clashes with the EEOC and other federal agency's interpretations of "Hispanic" (set out in a tabular appendix), court is not bound by these administrative interpretations. Mayor (individual defendant) had no "qualified immunity" from punitive damages, because "it has been clear since the Reagan Administration that § 1981 bars employers from discriminating based on Hispanic ethnicity or lack thereof." Panel vacates and remands the case for a new trial, based on the erroneous admission of lay-opinion testimony - in violation of Fed. R. Evid. 701 - by several witnesses that "impermissibly speculated as to Hardwick's motives for various personnel decisions." This included city policymakers who were permitted to testify that "there might have been a component of race involved in [Hardwick's] decision" based on the witnesses' observations of the process and prior staffing decisions. Such testimony, "despite ... witnesses' admissions that they had no personal knowledge of [mayor's] selection process and only the vaguest idea of the relevant candidates' qualifications . . . was not helpful to the jury in the sense required by Rule 701(b), and the District Court's decision to allow the jury to consider it was an 'abuse of discretion.'" Further, because of the closeness of the evidence - there was ample testimony of other motives, such as the other candidate's personal loyalty to the mayor and the fact that candidate was a native of Freeport - it could not be said that the improperly-admitted evidence did not tip the balance.

Fischer v. New York State Department of Law, 812 F.3d 268, 32 A.D. Cases 921 (2d Cir. 2016). Panel: KEARSE, Pooler, Livingston. Claims on Appeal: Government Employee Rights Act of 1991 (GERA) termination. Disposition Below: Motion to dismiss for lack of jurisdiction, FRCP12(b)(1) [plaintiff]. Outcome on Appeal: Dismissed [plaintiff]. Grounds: Denial of OAG's motion to dismiss pursuant to GERA does not qualify as an immediately appealable order under the collateral order doctrine.

Chen v. City University of New York, 805 F.3d 59, 128 FEP 349 (2d Cir. 2015). Panel: LIVINGSTON, Winter (CHIN, dissenting in part). Claims on Appeal: 1. Title VII and Equal Protection retaliation. 2. Title VII and Equal Protection discrimination (sex, race, national origin). 3. New York City Human Rights Law. 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. Employee did not create genuine dispute of material fact about reason for non-renewal (alleged "overaggressiveness and [a] lack of tact," both with colleagues and a student whom plaintiff complained was overly demanding of her time). Members of the department complained about her behavior long before she filed an affirmative-action complaint. Prior negative evaluations had already resulted in plaintiff losing out on second term as Interim Director, and subsequent complaints were consistent. No evidence suggesting that defendants arrived at their opinions to recommend against reappointment until after employee's confrontation with student. No inference can be drawn from timing of affirmative action complaint in relation to the employment decision in contest of prior complaints. Positive professional evaluations did not counteract consistent complaints about temperament. Also, no comparative evidence. 2. Argument that employee handled situation with student as instructed by one executive did not negate that other decision-makers thought her conduct was excessive. No evidence that word "collegiality" was code for improper reason for non-renewal. 3. Reference to "collegiality" and use of the word "stop" repeatedly do not sufficiently support Chen's claim; no reasonable jury could conclude, in context, that either evinced discriminatory intent. No evidence that executives engaged in any conduct "reasonably likely to deter a person" from complaining about NYCHRL violations after Chen filed her Affirmative Action Complaint.

Davis v. New York City Dept. of Educ., 804 F.3d 231, 32 A.D. Cases 298 (2d Cir. 2015). Panel: Per Curiam (Leval, Straub, Droney). Claims on Appeal: ADA discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in holding that denial or reduction of a discretionary bonus (allegedly from $3000 to $1000) is categorically insufficient to constitute an adverse employment action under ADA (noting split with Seventh Circuit). Judgment affirmed on alternative basis that employee failed to rebut employer's explanation as pretext (that she was absent for four months, that during her absence she did not contribute to the school's earning of bonuses for its teachers, that it needed to obtain a substitute teacher during her absence, and that the substitute teacher contributed importantly to the school's earning of the bonus).

EEOC v. Sterling Jewelers, Inc., 801 F.3d 96, 128 FEP 8 (2d Cir. 2015). Panel: WALKER, Lynch, Lohier. Claims on Appeal: Title VII pay and promotion (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that EEOC failed to prove that it satisfied its statutory obligation to conduct a pre‐suit investigation. Under the Mach Mining, courts may not review the sufficiency of an EEOC investigation-only whether an investigation occurred, i.e., whether it took steps to determine that there was reasonable cause to believe that the allegations in the charge are true. The EEOC need not describe in detail every step it took or the evidence it uncovered: an affidavit from the EEOC, stating that it performed its investigative obligations and outlining the steps taken to investigate the charges, will usually suffice. Here, EEOC presented evidence from its files that it conducted investigation, and that it was nationwide (investigative file contains 19 charges, 16 of which alleged company‐wide class and/or pattern‐or‐practice discrimination, from nine states across the country). Mediation agreement and privilege did not preclude EEOC reliance on expert report produced during investigation.

Cortes v. MTA New York City Transit, 802 F.3d 226, 32 A.D. Cases 1 (2d Cir. 2015). Panel: WINTER, Pooler, Sack. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADEA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Adverse, unreviewed state agency (NYSDHR) finding not preclusive of ADaction. District court erred by applying presumption, borrowed from arbitration cases (Collins v. New York City Transit Authority, 305 F.3d 113 (2d Cir. 2002)), that the plaintiff must present "strong evidence" why the arbitrator was mistaken. Nevertheless, the unreviewed findings of an agency are admissible exceptions to hearsay under FRE 803(8)(A)(iii), as "factual findings from a legally authorized investigation" by a public office. 2. Filing of the NYSDHR complaint in April 2007 is too remote from the alleged adverse employment action in June 2008 to support by itself an inference of retaliation.

Vega v. Hempstead Union Free school Dist., 801 F.3d 72, 127 FEP 1661 (2d Cir. 2015). Panel: CHIN, Katzmann, Walker. Claims on Appeal: 1. Title VII and § 1983 (race) discrimination. 2. Title VII and § 1983 retaliation. Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. To plead plausible violation for Title VII claims under Twombly and Iqbal pleading standard, plaintiff need only plead facts which show that "(1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision." For a § 1983 equal protection claim, the plaintiff must also - along with the above - allege that a state employee in his or her official capacity was acting "under color of state law." "Plausibility" requires simply that plaintiff plead "that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination." No requirement that employee resort to McDonnell Douglas (Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)). Allegation that "[b]eginning in 2008, Vega was assigned an 'increased percentage of students that were Spanish speaking and were not fluent in English,' requiring Vega to do 'twice as much work' in preparing and teaching his classes first in English and then in Spanish, without extra compensation" stated plausible allegation. While plaintiff's addition al complaints of unfair treatment (classroom assignment, attempted transfers, and other hostile actions) did not meet the plausibility standard, "they help create context for his discrimination claim." At least some of the activity alleged in the complaint occurred within the There‐year statute of limitations that governs § 1983 claims in New York, as well as the charging period for his parallel Title VII claim, to the extent he received extra work on a discriminatory (or retaliatory) basis after these dates. 2. 42 U.S.C. § 1983 allows claims against public employers for retaliation towards workers who oppose race discrimination in employment (noting prior intra-circuit split on issue). To plead plausible claim of retaliation, "[i]t is not enough that retaliation was a 'substantial' or 'motivating' factor in the employer's decision." Instead, the plaintiff must allege "that the adverse action would not have occurred in the absence of the retaliatory motive." And the "adverse action" need only "dissuade a reasonable worker from making or supporting a charge of discrimination." District court erred in holding that the plaintiff had to establish a connection to his race. "Retaliation occurs when an employer takes action against an employee not because of his ethnicity, but because he engaged in protected activity ‐‐ complaining about or otherwise opposing discrimination." Assignment of a substantially higher number of chronically absent students could very well have adversely impacted plaintiff, both by making his teaching assignments more difficult and by making it more difficult for him to achieve good results. Causation plausibly alleged, given that these actions were taken "shortly after he filed his initial charge with the EEOC on August 8, 2011," within weeks or in some cases months later.

Littlejohn v. City of New York, 795 F.3d 297, 128 FEP 234 (2d Cir. 2015). Panel: DRONEY, Leval, Lynch. Claims on Appeal: 1. Title VII, § 1981, and § 1983 demotion (race). 2. Title VII and §1981 retaliation. 3. Title VII, § 1981, and § 1983 harassment (race). 4. Title VII harassment (sex). Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 3. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 4. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Addressing arguable tension between Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), about the appropriate pleading standard for a Title VII claim, while Iqbal boosted the plaintiff's duty under Rule 8 - to allege enough facts to establish a "plausible" basis for legal relief - it was error to require that the complaint raise more than an inference of discrimination under the burden-shifting rubric of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). "[What must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent." Under this standard, plaintiff alleged a plausible claim of discrimination by pleading that she is black, was qualified for the EEO Director position at issue, and suffered an adverse employment action by being demoted. The inference of pretext established by allegations that plaintiff "was replaced by a white ACS employee ... after she was demoted from EEO Director," and that the replacement employee "was less qualified for the position," in particular that the replacement had no EEO experience and "was previously the Director of the Accountability/Review Unit that ... involved the comprehensive review of child welfare case practices." Panel affirms dismissal of the government-action, §§ 1981 and 1983 claims against the individual defendants - excepting one defendant, who was the alleged decision maker - and the city itself, in the absence of allegations of a municipal policy or custom. 2. Panel rejects application of a so-called "manager rule" that excludes from "protected activity" any EEO opposition that falls within the employee's scope of duties. "To the extent an employee is required as part of her job duties to report or investigate other employees' complaints of discrimination, such reporting or investigating by itself is not a protected activity under § 704(a)'s opposition clause, because merely to convey others' complaints of discrimination is not to oppose practices made unlawful by Title VII. But if an employee-even one whose job responsibilities involve investigating complaints of discrimination-actively 'support[s]' other employees in asserting their Title VII rights or personally 'complains' or is 'critical' about the 'discriminatory employment practices' of her employer, that employee has engaged in a protected activity under § 704(a)'s opposition clause." Plaintiff alleged a causal connection between the protected activity and her demotion, holds the panel, with facts that "the demotion occurred within days after her complaints of discrimination." 3. Alleged race harassment was not sufficiently severe or pervasive. Allegations that supervisor was negative, impatient and used harsh tones with plaintiff; distanced herself from plaintiff and declined to meet with her nearby; required to do addition al, repetitive work; replaced at meetings; reprimanded and sarcastically told that "you feel like you are being" and that plaintiff did not "understand the culture." 4. Sex harassment allegations were not included in Littlejohn's EEOC charge, and thus did not satisfy the Title VII charge-filing precondition to suit.

Burgis v. New York City Dep't of Sanitation, 794 F.3d 249, 31 A.D. Cases 1441 (2d Cir. 2015). 798 F.3d 63, 127 FEP 1341 (2d Cir. 2015). Panel: RAKOFF, Calabresi, Hall. Claims on Appeal: 1. Equal Protection and § 1981 class promotion. 2. Title VII disparate impact promotions (race). Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. affirmed [defendant]. Grounds: 1. While complaint generally alleges with respect to seven plaintiffs that they have been passed over for subsequent promotions while White individuals, who were allegedly less qualified, were promoted, it fails to provide meaningful specifics of the alleged difference in qualifications, let alone discriminatory intent. Other plaintiffs indicate only differential treatment with no facts indicating racial bias. While statistics alone may be sufficient to warrant a plausible inference of discriminatory intent if they show a pattern or practice that cannot be explained except on the basis of intentional discrimination, statistics must not only be statistically significant in the mathematical sense, but they must also be of a level that makes other plausible non-discriminatory explanations very unlikely. Here, statistics were only raw, non-regressed numbers. 2. Plaintiffs failed to meet charge-filing requirement, because charges only indicated individual disparate treatment, not reasonably related to a Title VII disparate impact claim alleging class-wide discrimination.

Smith v. Hogan, 794 F.3d 249, 31 A.D. Cases 1441 (2d Cir. 2015). Panel: PARKER, Kearse, Wesley. Claims on Appeal: AD and Rehabilitation Act termination. Constitutional claims (not discussed here). Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Bronchitis not a qualifying disability, and alternative theory of discrimination based on an alleged anxiety disorder was not pled in the Amended Complaint. Plaintiff's attempt to supplement complaint with declaration not a part of the complaint pursuant to FRCP10(c) as "written instrument."

Davis v. Bombardier Transp. Holdings, 794 F.3d 266, 31 A.D. Cases 1446 (2d Cir. 2015). Panel: WESLEY, Livingston, Carney. Claims on Appeal: ADA demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Where Lilly Ledbetter Fair Pay Act of 2009 does not apply to demotion claim.

Tolbert v. Smith, 790 F.3d 427, 127 FEP 705 (2d Cir. 2015). Panel: KOELTL, Lynch, Carney. Claims on Appeal: 1. Title VII, § 1981 and NY state law discrimination (race). 2. Title VII, § 1981 and NY state law hostile work environment (race). State tort claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Denial of tenure is an adverse employment action, even if the employment continues for another year, so plaintiff made out prima facie case. Plaintiff also presented genuine dispute of inference of discrimination where de facto decision maker made several racially hostile remarks ("Do you only know how to cook black, or can you cook American too?"; "how [she] expected to learn if all [she] was learning to cook was black food"; "black kids can't learn in a cooking class because all they want to do is eat"). "Plaintiff need not show that Principal Smith declared that the tenure decision was tied to the plaintiff's race. Statements showing an employer's racial bias, which Mr. Tolbert identified, are sufficient to support a prima facie case of discrimination." Also evidence that procedures were manipulated to evaluate the plaintiff for tenure. 2. No genuine dispute of material fact about whether two offensive comments heard by plaintiff, and miscellaneous affronts (supposedly not given a budget and paraprofessional support, room not properly cleaned) were objectively hostile and abusive.

Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015). Panel: CARNEY, Leval, Chin. Claims on Appeal:Title VII, N.Y. state and NYC law discrimination and retaliation. NLRA claim (not discussed here). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District Court erred in dismissing complaint because charge filing before commencing a Title VII action in federal court is a not a subject-matter jurisdictional requirement, but rather a precondition of suit that may be subject to equitable defenses. Thus, case should not have been dismissed under 28 U.S.C. § 1915(e). Plaintiff may have equitable exceptions, futility and "reasonable relatedness." When an agency has previously "taken a firm stand" against a plaintiff's position, the plaintiff's failure to exhaust administrative remedies may be excused on the ground that exhaustion would be futile. When Fowlkes filed his 2011 complaint, the EEOC had developed a consistent body of decisions that did not recognize Title VII claims based on the complainant's transgender status. Also, given the contents of plaintiff's amended complaint and the close resemblance that it bore to his earlier EEOC charge, his more recent allegations may be "reasonably related" to those included in his earlier administrative filing with the EEOC.

Noll v. Int'l Bus. Machs. Corp., 787 F.3d 89, 31 A.D. Cases 1049 (2d Cir. 2015). Panel: JACOBS, Droney (SACK, dissenting). Claims on Appeal: AD and N.Y. state law reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Where company offered to provide ASL interpreter for deaf employee to understand audio track of video files on company intranet (along with transcripts and occasional closed-captioning), rather than provide closed-captioning for all content, that was reasonable accommodation despite that employee complained that switching between ASL interpreter and video was "confusing and tiring." Plaintiff's affidavit that ASL interpreters were taxing to watch does not prove that the accommodation is ineffective. He conceded that ASL interpreters were acceptable for live meetings. Employer need only choose among reasonable accommodations, not necessarily select the best one or the one desired by employee. No separate claim for failing to engage in "interactive process."

Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 127 FEP 176 (2d Cir. 2015). Panel: PARKER, Hall, Livingston. Claims on Appeal: § 1981 harassment. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in granting JMOL after a jury trial ($1 nominal damages and $900,000 punitive damages; punitive damages vacated). Despite that plaintiff invoked the Fifth Amendment up to 24 times during trial, and jury was instructed to consider such evasive testimony against party, jury could have credited such evidence .Jury was not required to find supervisor liability. Nevertheless district court did not err in remitting entire punitive award on ground that record did not disclose evidence of malice or reckless indifference by employer in handling complaints. Remanded for calculation of fees based on limited success (nominal award only).

Robinson v. Concentra Health Serv's, Inc., 781 F.3d 42, 126 FEP 925 (2d Cir. 2015). Panel: PARKER, Hall, Lohier. Claims on Appeal: § 1981 and Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee judicially estopped from making out prima-facie claim that she was qualified for employment by SSI payments. Court could rely on ALJ opinion's description of what plaintiff said without necessarily having original application in evidence. Plaintiff offered no means of reconciling her statements.

Turley v. ISG Lackawanna Inc., 774 F.3d 140, 125 FEP 895 (2d Cir. 2014). Panel: SACK, Katzmann, Rakoff. Claims on Appeal: § 1981, Title VII, and N.Y. state law discrimination and harassment. State tort claim (not discussed here). Disposition Below: Judgment after a jury trial ($1,320,000 in compensatory, $24,005,000 in punitive damages remitted to $5,000,000, attorneyʹs fees of $437,323.30 and costs of $32,711.42) [plaintiff]. Outcome on Appeal: Affirmed except punitive damages ordered remitted [plaintiff]. Grounds: Jury charge did not mislead the jurors into believing that a single manager's failure to respond to the complaints of harassment could result in liability for the employer. The charge uses "the phrase 'employerʹs response' five times, and explicitly states that the jury must consider the totality of the circumstances ... It employs phrases, such as 'the employerʹs resources,' ... , that would make little sense unless the jury was being asked to consider the employerʹs response as a whole." Were there any error, though, the panel holds that it would be harmless, because the individual managers charged with protecting plaintiff from harassment, the jury found, were liable for harassment themselves. The jury could find, based on substantial evidence, that there was a single-employer relationship between Turley's parent and subsidiary employers with respect to managing the racial harassment: "[T]here was some evidence that the parent company was directly and necessarily involved in decisions relating to the plaintiffʹs employment and to the course of harassment. It negotiated and entered into the collective bargaining agreement with the union, and it was this agreement that governed the plantʹs response to Turleyʹs complaints. A 2007 harassment training seminar explained that all complaints must be reported to the corporate human resources department, and that any settlement that changes anyoneʹs terms of employment must be approved by the corporate office. Employees were directed to report harassment to the 'Alertline,' a nationwide 'hotline.' Plant managers repeatedly stated that they were required to check with the corporate legal department in Chicago before providing information to assist police investigations concerning Thereats against Turley. And Turleyʹs employment ended when the parent company shut down the Lackawanna plant and sold its assets." Because employer waived argument in district court that a tort claim for intentional infliction of emotional distress (IIED) was precluded by the NY Human Rights Act, the liability verdict on that claim and associated damages are upheld. (Panel evinces doubt on whether such claim are allowed.) Upholds liability against the company, noting that manager's "actions and omissions fell within [his] assigned role in the company, and may fairly be imputed to his employer." Affirms $1.32 million compensatory award, at very top of range of awards previously awarded or upheld by courts in the circuit. Holds that a $5 million punitive award was excessive under federal common law. The 4:1 ratio with compensatory damages allowed by the district court's remittitur was excessive as a matter of federal common law, applying the There guideposts of BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) - degree of reprehensibility, proportionality to the harm, and predictability measured by penalties in comparable cases. "Where the compensatory award is particularly high, as the one in this case assuredly was, a four‐to‐one ratio of punishment to compensation, in our view, serves neither predictability nor proportionality. As noted, this particularly so where the underlying compensation is, as it is in this case, for intangible-and therefore immeasurable-emotional damages. Imposing extensive punitive damages on top of such an award stacks one attempt to monetize highly offensive behavior, which effort is necessarily to some extent visceral, upon another." Reviewing other cases involving comparable awards, court holds that a 2:1 ratio of compensatory and punitive damages would be the outside tolerable range, and that a 2:1 ratio would otherwise accord with constitutional due process. The panel remands the case back to the district court to determine the amount.

Raspardo v. Carlone, 770 F.3d 97, 124 FEP 1049 (2d Cir. 2014). Panel: DRONEY, Winter, Lynch. Claims on Appeal: § 1983 individual liability discrimination and harassment (sex). Disposition Below: Qualified immunity denied [plaintiff]. Outcome on Appeal: Reversed in substantial part [defendant]. Grounds: There women police officers - named Raspardo, Russell and Spring - brought suit against five male officers for hostile work environment and discrimination. The principal instigator allegedly was a sergeant named Carlone, though There other officers (Steck, Panetta and Paventi) allegedly engaged in harassing and discriminatory behavior as well - for instance, dogging the plaintiffs about minor infractions. Finally, defendant Gagliardi was Chief of Police for the City of New Britain, Connecticut, and had final supervisory authority over the other defendants. Most serious harassment charges were filed against Carlone, their direct supervisor, who allegedly made inappropriate jokes, comments and (in the case of plaintiffs Russell and Raspardo) physical touching. Second, Chief Gagliardi was alleged to be grossly negligent for failing to investigate and correct the junior officers' behavior. Third, various defendants were charged with a panoply of discrimination (or disparate treatment) claims: unequal discipline for accidents with squad cars, unequal sick leave and roll call policies, discriminatory failure to investigate harassment, and the like. Panel holds that "[i]f a defendant has not personally violated a plaintiff's constitutional rights, the plaintiff cannot succeed on a § 1983 action against the defendant." Thus, where a plaintiff "alleges that multiple individual defendants have engaged in uncoordinated and unplanned acts of harassment, each defendant is only liable under § 1983 when his own actions are independently sufficient to create a hostile work environment." One partial exception to this framework, is "[j]ointly planned or perpetrated acts of harassment," which may be attributed to each of the defendants ... conspiracies may exist even if their members have not expressly agreed to engage in joint behavior, and may be inferred from the actions of multiple parties who are aware of, and intentionally commit acts to further, a common project." Supervisory liability under section 1983, because the Supreme Court eschewed vicarious liability, must be based on evidence that the supervisor "was aware of a subordinate's prior substantial misconduct but failed to take appropriate action to prevent future similar misconduct before the plaintiff was eventually injured," a standard referred to as gross negligence. Moreover, a "plaintiff pursuing a theory of gross negligence must prove that a supervisor's neglect caused his subordinate to violate the plaintiff's rights." Spring's claim against Carlone dismissed because she suffered only episodic harassment, though the panel noted that comments that Carlone made outside of Spring's presence - had she learned about them while she was still employed - might have bolstered her claim. Raspardo's claim - which alleged four specific incidents of touching or sexual comments and over ten occasions where he made comments about her body - survived. (Carlone did not appeal Russell's claim.) Regarding Steck and Panetta, the panel held they were not motivated by the plaintiffs' sex as a matter of law, with any adverse treatment being associated with official reprimands that were not shown to be gender-targeted. And Paventi, while occasionally prone to giving the female officers offensive nicknames, was held not to have committed severe or pervasive harassment under clearly-established principles of law. Chief Gagliardi was also cleared by the panel for supervisory liability for failure to supervise Carlone. According to the panel, because the plaintiffs did not complain specifically to Gagliardi about the harassment until Carlone was already on administrative leave, the only prior notice the chief conceivably had was his prior investigation (and punishment) of Carlone in unrelated incidents. This, as a matter of law, was insufficient (according to the panel) to make the chief grossly negligent in not disciplining Carlone or preventing him from harassing the plaintiffs. Finally, the disparate treatment claims each failed, either because the claimed discrimination was not materially adverse (reprimands for tardiness) or because the plaintiffs were unable to establish - directly or indirectly - that it was motivated by sex, such as showing that similarly-situated men were not treated the same way.

EEOC v. Port Auth. of NY and NJ, 768 F.3d 247, 124 FEP 1071 (2d Cir. 2014). Panel: LIVINGSTON, Droney, Chen. Claims on Appeal: Equal Pay Act. Disposition Below: Judgment on the pleadings [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: EEOC failed to allege facts establishing "substantially equal" work between supervisory attorneys working for Port Authority who were alleged to have different levels of skill, tenure, experience and responsibility. EEOC failed to plead actual job content, minimally required to make out plausible claim. Job codes not a proxy for duties. Swierkiewicz continues to be good law, post Iqbal and Twombly.

Delaney v. Bank of America Corp., 766 F.3d 163, 124 FEP 317 (2d Cir. 2014). Panel: Per Curiam (Winter, Wesley, Hall). Claims on Appeal: ADEA termination. Contract claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Draft EEOC charge by co-worker as evidence to support inference of age-animus was inadmissible hearsay under FRE801(c).

Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 124 FEP 115 (2d Cir. 2014). Panel: WESLEY, Walker Pooler. Claims on Appeal: 1. Title VII and § 1983 promotion. 2. Title VII and § 1983 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant.] Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. African-American detective sought a transfer to the prestigious Major Crimes Van (the "Van") for the Eastern District Major Crimes Unit ("EDMCU"). The Van consists of "five to six EDMCU detectives who investigate serious crimes, suspicious deaths, and homicides," and are considered the "best of the best of troopers." Despite plaintiff's credentials, a commanding officer made a remark possibly suggestive of race discrimination (that other, non-minority candidate would "fit in" better), and "fit in" remark had been made before. Plaintiff later was unwillingly transferred to the far-less prestigious Casino Unit, where he was assigned to perform mostly background checks. (Eventually he was reinstated to felony duty.) The district court erred in excluding the fit-in statements as hearsay (FRE801); they were admitted for non-hearsay purpose. It then holds that the statements could be interpreted as racial: "Abrams's non‐assignment to the Van as well as the Fit In Statements make this a case about more than mere 'discrepancy in qualifications' .... The Fit In Statements raise a genuine dispute as to whether the proffered reasons for Abrams's non‐assignment to the Van were pretextual .... Balancing all of these factors, we see this as a very close case, and one, when considered in the light most favorable for the non‐moving party-as it must be-that is simply too close to call and should be a question for a jury." On remand, court should conduct a qualified immunity analysis as to each individual defendant on remand. 2. Panel upholds the district court grant of summary judgment and jury verdict on the retaliation claims. It finds that a five-month gap between the complaints of racial discrimination and the forcible transfer failed to support an inference of causation. On the other claim (that went to a jury trial), that Abrams was denied transfers to the Van because of retaliation, the panel holds that the district court did not err in procedural rulings concerning denial of a continuance and handling of the evidence of racial discrimination.

Kirkland v. Cablevision Systems, 760 F.3d 223,123 FEP 1436 (2d Cir. 2014). Panel:  Per Curiam (Calabresi, Lynch, Lohier). Claims on Appeal: Title VII discrimination (race) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine dispute of material fact about pretext: singled out of criticism about presentation (versus white co-workers), incessantly stating that "white is better than color"; falsification of review documents; handwritten notation that he was not "receptive to coaching"; complaints about discrimination and retaliation ignored; testimony that African-American manager might have been hired for the express purpose of having cover to terminate plaintiff; testimony about alleged racist views of manager.

Moll v. Telesector Resources Group, Inc., 760 F.3d 198, 123 FEP 1439 (2d Cir. 2014). Panel: WALKER, Cabranes, Parker. Claims on Appeal: 1. Title VII and NY state law harassment (sex). 2. Title VII, NY state law and EPA pay, termination (sex) and retaliation. Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Comments need not be sexual in nature to constitute part of hostile work environment, so even non-sexual comments may continue limitations period. District court erred in not considering totality on timing issue. 2. District court abused discretion in failing to compel production of documents concerning administration of reduction in force and possible comparators. Error on discovery order was significant enough to warrant reversal. On remand, district court should avoid repeating error of categorically excluding witness affidavit submitted by plaintiff in opposition to summary judgment on sham-affidavit grounds. Rule governing conflict of party's testimony and affidavit does not extend to non-parties who otherwise lack a close relationship with party (family, expert witness). Moreover, alleged conflict between affidavit and deposition testimony is minor, i.e., affidavit does not "inescapably and unequivocally" contradict earlier testimony. Issue of veracity (i.e., vindictive motive) is one for impeachment at trial.

Cox v. onndaga Cty. Sheriff's Dep't, 760 F.3d 139, 123 FEP 1185 (2d Cir.,2014). Panel: WINTER, Chin, Droney. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Investigation into white officers' complaint of race harassment, believed to false, and Thereat of false-claim charges, not actionable. "An employer's investigation of an EEOC complaint alleging racial harassment without more -- that is, without addition al particularized facts evidencing a retaliatory intent and resulting in, or amounting to, adverse job consequences for the complainant" - not an "adverse employment action" unless it creates a hostile work environment, results in constructive discharge or other adverse action, or is so egregious that it would likely dissuade a reasonable employee from complaining. Participation clause of Title VII retaliation implies "good faith" participation, so filing a knowingly false EEOC charge may not be protected; in any event, employer proffered legitimate reason for investigating employees for allegedly filing false charges (the need to correct and prevent harassment and discrimination).

Brown v. Daikin America, 756 F.3d 219, 123 FEP 795 (2d Cir. 2014). Panel: CARNEY, Lynch, Lohier. Claims on Appeal: Title VII and NY state termination (race, national origin). Contract claim (not discussed here). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in applying four-part integrated enterprise test to American subsidiary and foreign parent. Plaintiff alleged sufficient basis for finding the control requisite to prove test (parent closely controlled operations of domestic subsidiary, immunized Japanese rotational employees from termination in favor of firing Americans). Not essential to allege that parent directed particular decision involving plaintiff. On the merits, panel raises issue of whether the pleading standard for Title VII cases in Sweirkiewicz survives Twombly and Iqbal (indicating in dicta that it does survive). No matter what pleading standard applies, plaintiff alleged plausible claim of discrimination. Evidence that plaintiff worked in same unit with There Japanese employees, with same manager and performance expectations sufficiently alleged comparable employees. Plaintiff need not allege responses to possible plausible, non-discriminatory reasons for decision; the burden of production is on the defendant. Whether such reasons existed is not properly decided on a motion to dismiss.

Parada v. Banco Industrial De Venezuela, C.A., 753 F.3d 62, 29 A.D. Cases 779 (2d Cir. 2014). Panel: LOHIER, Raggi, Lynch. Claims on Appeal: 1. ADA retaliation. 2. ADA, NY state and NYC law termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff waived argument that letters of reprimand constituted materially adverse action. 2. Even under pre-amended ADA, inability to sit for prolonged period of time may constitute a major life activity for purposes of whether employee is "qualified individual with a disability."

Matusick v. Erie County Water Auth., 122 FEP 669 (2d Cir. Feb. 25, 2014). Panel: SACK (LOHIER, concurring) (RAGGI, dissenting in part). Claims on Appeal: § 1983 and NY state law harassment and discrimination (right of intimate association). Disposition Below: Judgment after a jury trial ($304,775 back pay, $5000 punitive damages per individual defendant) [plaintiff]. Outcome on Appeal: Affirmed but punitive damages vacated [plaintiff]. Grounds: White plaintiff claims that he was assaulted, harassed, and ultimately terminated from his employment because of a romantic relationship he had with an African‐American woman (Starks). Plaintiff brings suit against employer ECWA, and ten individual defendants. Panel affirms judgment, but vacates (on qualified immunity grounds) the damage awards against the individual defendants, because discrimination on the basis of being engaged to marry person of different race was not "clearly established." District court committed error in not granting the hearing officer's report collateral estoppel/issue preclusion effect at trial (on the issue of whether plaintiff committed charged misconduct that led to dismissal, sleeping at work and not responding to calls), but error was harmless under FRCP61. Jury was presented with an array of evidence establishing plaintiff's misconduct (including his own cross-examination at trial). Judgment as a matter of law properly denied on issue of whether employer and two individual defendants were responsible for termination. Sufficient evidence established that racial harassment and discrimination was chronic and pervasive, that racial animus tainted investigation into misconduct, and animus was substantial factor in agency's decision to follow hearing officer's recommendation of termination. Plaintiff also presented sufficient evidence of comparators (other dispatchers subject to lighter penalties for comparable misconduct. That comparators did not have as extensive a history of behavior potentially subject to legitimate discipline not determinative; jury could consider how other employees' disciplinary actions were handled. Panel holds, under the authority of Roberts v. United States Jaycees, 468 U.S. 609 (1984), that "Matusickʹs betrothal to Starks under the circumstances presented here constituted an intimate association, part and parcel of their eventual marriage and entitled to similar protection under the First Amendment. Considering Matusickʹs interests in preserving and protecting his intimate espousal relationship with Starks, we conclude that the conduct that he alleges that the ECW and the individual defendants committed violated his constitutional right to intimate association." Right announced in Roberts goes beyond familial relations. Monell liability attached to the ECWA for its failure.

Castagna v. Luceno, 744 F.3d 254, 121 FEP 1533 (2d Cir. 2014). Panel: STEIN, Livingston, Lohier. Claims on Appeal: NY state law torts. Disposition Below: Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Filing of EEOC charge does not toll limitations period for state-law tort claims.

Rivera v. Rochester Genesee Regional Transp. Auth., 743 F.3d 11, 121 FEP 1083 (2d Cir. 2014). Panel: LOHIER, Kearse, Droney. Claims on Appeal: 1. Title VII, § 1981, and NY state law harassment (race, national origin). 2. Title VII, § 1981, and NY state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Two plaintiffs presented genuine dispute of material fact regarding severe/pervasive harassment and that harassment was because of race and national origin. Plaintiff Rivera, though he had a personal conflict with harasser (and employee failed to mention national-origin-based comments in charge), also presented evidence that he was called "spic" There or more times (corroborated by other testimony) and extensive evidence of physical abuse and intimidation. Plaintiff Talton likewise presented evidence that he was called "nigger" on repeated occasions and also physically menaced. 2. Disciplinary citations were not materially adverse, but Thereat that one plaintiff would lose his job was materially adverse.

Martinez v. Bloomberg LP, 740 F.3d 2311, 121 FEP 621 (2d Cir. 2014). Panel: KOELTL, Lohier (PARKER, dissenting in part). Claims on Appeal: ADA, NY state and city termination. Disposition Below: Dismissed for improper venue under FRCP12(b)(3) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Forum selection clause was enforceable under federal law, and as interpreted under U.K. law plaintiff's discrimination claims "arose under" the employment agreement. Federal law governs enforceability of forum-selection clause, rather than parties' choice-of-law jurisdiction. Because the statute of limitations for improper dismissal had already run under U.K. law, dismissal appropriate.

Kwan v. The Andalex Group, 737 F.3d 834, 120 FEP 1805 (2d Cir. 2013). Panel: KOELTL, Lohier (PARKER, dissenting in part). Claims on Appeal: 1. Title VII, NY state and NYC law harassment (sex). 2. Title VII NY state and NYC law retaliation. ERISA claim (not addressed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [defendant] Grounds: 1. Employee forfeited claim by not raising it until opposition to summary judgment. 2. District court erred in holding, at summary judgment stage, that employee had to prove that a particular individual decision maker actually knew about her complaint of sex discrimination; for purposes of prima facie case, plaintiff may rely on "general corporate knowledge" of protected activity. Complaint to officer of company can be imputed to company as a whole. There-week period between making of complaint and termination was sufficient to support temporal proximity. "But for" causation under Nassar does not require proof of "sole cause." Evidence of pretext includes shifting explanations, where company's EEOC position statement contended that employee was fired because of change of direction of employer's business, while in litigation it argued instead that she was fired for poor performance and inappropriate behavior. Together with short period between complaint and termination, reasonable finder of fact could find causation.

Gerstenbluth v. Credit Suisse Securities (USA) LLC, 728 F.3d 139, 119 FEP 1272 (2d Cir. 2013). Panel: CARNEY, Pooler, Lohier. Claims on Appeal: ADEA settlement. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Settlement of ADEA claim constitutes wage income subject to FICA withholding.

Carrion v. Agfa Construction Inc., 720 F.3d 382, 118 FEP 1542 (2d Cir. 2013). Panel: CABRANES, Wesley, Wallace. Claims on Appeal: § 1981 discrimination (race). Davis-Bacon Act claim (not discussed here). Disposition Below: Judgment after a jury trial ($1 nominal damages, $5000 punitive damages; punitive award vacated) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff presented no evidence of intentional/reckless disregard of federal rights to support punitive award. No abuse of discretion denying new trial on compensatory damages.

United States v. City of New York, 717 F.3d 72, 118 FEP 417 (2d Cir. 2013). Panel: NEWMAN, Winter [POOLER, dissenting]. Claims on Appeal: Title VII pattern-or-practice §§ 1981 and 1983, and N.Y. state law hiring (race). Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: United States brought disparate impact claim against city for use of exam that screened out minority applicants for hiring as firefighters. Disparate impact liability found; city did not challenge on appeal. Intervenors filed a private, pattern-or-practice disparate treatment case. District court granted summary judgment on liability to intervenors and entered injunction. In pattern-or-practice case, court holds that employer's rebuttal burden after employee proffers evidence of a pattern-or-practice is a burden of production, comparable to McDonnell Douglas. Specifically, there is no requirement that an employer specifically attack the plaintiffs' statistics, and district court erred in so holding. Employer may use non-statistical evidence, such as affirmative action plans, to dispel discriminatory motive. Here, city proffered non-discriminatory explanation of testing in response to wide disparities (test was facially neutral, had been examined for job relatedness, minority recruitment). District court also erred in weighing credibility of city's explanation, that holding that it was inappropriate to challenge "intent" in rebuttal phase and that employer could not point out in rebuttal that there was no evidence of a subjective intent to discriminate. Court also erred in qualified immunity to mayor and NYFD chief; qualified immunity analysis does not consider whether it was "clearly established: that there would be potential individual liability for pattern-or-practice discrimination. Decision on mayor affirmed on alternative ground that there was insufficient evidence to infer discriminatory intent. NYFD chief may be individually liable on ground that he approved continued use of test while knowing that it had a disparate impact on minority applicants. Official/qualified immunity properly granted on state law claims. Injunction that was entered on disparate impact/treatment claims had to be trimmed back to cover just impact: references to intentional discrimination, bar against any policy with disparate impact must include business necessity exception, requirement that Corporation Counsel review and approve plans (CC is not a party), reporting to mayor, using outside consultant, detailed requirements for new examination, limits on modification of decree. Case assigned to new judge for trial, on ground of appearance of bias, but balance of case remains with current judge for enforcement.

Kelly v. Howard I. Shapiro & Assoc. Consultant Engineers, PC, 716 F.3d 10, 118 FEP 233 (2d Cir. 2013). Panel: Per curiam [Walker, Wesley, Droney]. Claims on Appeal: Title VII and NY state law retaliation. Disposition Below: Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee lacked reasonable, good-faith belief that romatic relationship between manager and a co-worker created a hostile work environment ("paramour preference"), thus report to employer was not a protected activity.

Mihalik v. Credit Agricole Cheuvreux North America, Inc, 715 F.3d 102, 118 FEP 238 (2d Cir. 2013). Panel: CHIN, Lohier, Droney. Claims on Appeal: 1. NYC law harassment (sex). 2. NYC law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. affirmed [defendant]. Grounds: 1. District court erred by applying federal Title VII standards of proof to NYC law claim, where ordinance had been amended specifically to provide for broader coverage. For harassment, the standard applied under the NYCHRL is not "severe or pervasive," but rather "a rule by which liability is normally determined simply by the existence of differential treatment." Therefore, employee need only show that she was treated "less well than other employees because of her gender" and that the conduct need not even be "tangible." (The "severe or pervasive" standard is only relevant as to damages.) Thus "even a single comment that objectifies women" may be actionable. Employer may escape liability only if it can show (as an affirmative defense) that the conduct complained of is nothing more than what a reasonable person would consider "petty slights and trivial inconveniences." 2. New York courts have also broadly interpreted the NYCHRL's retaliation provisions and that if an action would "deter a person from engaging in protected activity" then it should be deemed retaliatory. Genuine dispute of material fact whether employee engaged in protected harassment by complaining about alleged hostile work environment and unwanted sexual attention, noting that "even a poorly-performing employee is entitled to an environment free from sexual harassment." In addition, a jury may find that employee engaged in protected activity when she opposed Peacock's discrimination by denouncing his sexual propositions and that Peacock's reason for firing her was a "mere cover-up for retaliation.").

Sotomayor v. City of New York, 713 F.3d 163, 117 FEP 1579 (2d Cir. 2013). Panel: Per curiam [Winter, Chin, Droney]. Claims on Appeal: ADA, N.Y. and N.Y.C. law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to establish causation (no analysis).

Parisi v. Goldman, Sachs & Co., 710 F.3d 483, 117 FEP 1055 (2d Cir. 2013). Panel: PARKER, Raggi, Lynch. Claims on Appeal: Title VII pattern-or-practice pay and promotion (sex). Disposition Below: Arbitration not compelled [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Arbitration agreement could be enforced, in spite of fact that it precluded class-wide Title VII pattern-or-practice case. Employee lacked statutory right to advance pattern-or-practice claim.

McMillan v. City of N.Y., 706 F.3d 120, 117 FEP 137 (2d Cir. 2013). Panel: WALKER, Livingston, Droney. Claims on Appeal: ADA, N.Y. and N.Y.C. law discipline and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee suffered drowsiness as a result of anti-psychotic medication, which made it difficult for him to arrive at the office daily by 10 a.m. (or the 10:15 a.m. grace time allowed by agency rules.) While his agency tolerated employee's arrivals as late as 11 a.m. for a decade, this changed in 2008, when supervisor refused to approve any more late arrivals. Employee placed on a 30-day suspension without pay for tardiness. District court did not adequately evaluate the factual circumstances of this case. Employee's long, successful history with the de facto accommodation of arriving late presented a genuine issue of material fact about whether timely attendance at work was an "essential function." Other cases that had previously held that timeliness was an essential function, the panel holds, involved situations that "absolutely required plaintiffs' presence during specific business hours," e.g., the employee was a supervisor, or the company had to meet timely deadlines. the panel also noted that there was an important distinction between tardiness and absenteeism, i.e., "an absent employee does not complete his work, while a late employee who makes up time does." Even unsupervised hours might be a reasonable accommodation. Court remands the issue of whether such a work arrangement might amount to an "undue burden" under the ADA (a defense upon which the employer bears the burden of proof).

Maraschiello v. City of Buffalo Police Dep't, No. 12-1006 (2d Cir. Feb. 27, 2013). Panel: WESLEY, Walker, Cabranes. Claims on Appeal: Title VII promotion (reverse discrimination). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. GroundsRicci v. DeStefano did not require police department to immediately use 2006 results instead of waiting for results from 2008, where department took one year to adopt new test prior to vacancy opening up (plaintiff declined to take 2008 exam). Even if it could be shown that department adopted new test to achieve racial balance, rehaul of examination not shown to be race-based adverse action. Record showed that test was changed because of study of job qualifications, rather than race. Comment by chief that plaintiff was "Racist" did not establish that adoption of new test was for a race-based reason.

Summa v. Hofstra University, No. 11-1743 (2d Cir. Feb. 21, 2013). Panel: Per curiam (Kearse, Katzman, Lohier). Claims on Appeal: POOLER, Raggi, Lynch. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant] Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Woman graduate student who, for a $1000 stipend, served as team manager for the university's football team for the fall season. From the very first, she was subjected to comments about her boyfriend - a team member - not being "man" enough for her, and that "that women should not be managers because they don't know anything about sports ." Players created a mock Facebook page about the plaintiff, describing her as "Miss Piggie, The 'Wannabe' Big Boss Man, F.B. Manager." One team member on bus ride said, in response to R-rated movie on bus TV monitor, "[t]his what you white women want, our black dicks. That shit will make you crazy." Summary judgment was affirmed on the ground that the school met its duty of due care by investigating and correcting harassment by the players. Same standard of liability for harassment applied to employers both for co-workers and non-employees, 29 C.F.R. § 1604.11(e). Each incident reported to the coach or school was immediately investigated, and effective measures were taken to correct the misbehavior. 2. Plaintiff presented genuine issue of material fact that she believed in good faith that her harassment complaint was related to her employment as team manager, rather than a student-on-student complaint: employee was not "on the football team bus in her capacity as a graduate student, but rather was there solely in her capacity as an employee of the Athletics Department." Despite that written complaint was about a single incident (on the team bus), plaintiff also had a good-faith basis for believing that it constituted sex harassment. Single incident can create a hostile environment if it is sufficiently severe. The incident on the team bus was close enough in severity for reasonable person to believe it alone was enough to satisfy the standard. Moreover, there was more than one written complaint. Four-month gap between written complaint and denial of the team manager job the next season presented sufficient "temporal proximity" to allow a jury to infer that the written complaint caused the adverse action; harassing event occurred on the very last day of the fall season, and start of the spring season was the first moment in time when the football coaching staff could have retaliated against employee as she was not directly working for them over the intervening months. This Court has recently held that even gaps of four months can support a finding of causation." Even seven-month gap between filing of the instant lawsuit and the decision to terminate her employment privileges is not prohibitively remote. Sufficient evidence that each of the reasons that university gave for the various adverse actions was pretextual. (1) The school claimed that Summa had not expressed a desire to work as a team manager during the spring season, but this was belied by email traffic to the contrary. (2) For the rescission of the graduate assistantship position, there was evidence that a hostile administrator - aware of the harassment complaint - intervened into the process and encouraged the decision maker. (3) Finally, termination of Summa's student working privileges arguably resulted from a biased investigative process, where the administrator had "never even looked into the billing practices of any other student employee and had never previously terminated student employment privileges for the practice."

Desardouin v. City of Rochester, No. 12-187 (2d Cir. Feb. 19, 2013). Panel: NEWMAN, Raggi, Lynch. Claims on Appeal: 1. Title VII, § 1983, and N.Y. state law harassment (sex). 2. Title VII, § 1983, 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. Security officer alleged that she was subjected to a stream of sexual comments and propositioning by her supervisor between May and June or July of 2008. Genuine issue of material fact whether comments were severe or pervasive. "For a male to say to a female employee under his supervision that her husband was 'not taking care of [her] in bed' is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reenforce its offensive meaning and to make sexual intimidation, ridicule, and insult a pervasive part of [plaintiff's] workplace, effectively changing the terms and conditions of her employment." Plaintiff testified that she found supervisor "Threatening" and that he made "sexual advances" toward her and another employee. Court affirms dismissal of a parallel state law claim (under the NYSHRA, because the plaintiff already pursued that claim through the state administrative machinery). 2. Employee failed to present sufficient evidence that her complaints of harassment caused her termination for unlawful recording of conversations, and reporting untruthfully about the same.

Garcia v. Hartford Police Dept., 706 F.3d 120, 117 FEP 137 (2d Cir. 2013). Panel: Per curiam (Kearse, Katzman, Lohier). Claims on Appeal: Title VII, § 1981, and Conn. state law promotion and discipline (race, national origin). First Amendment retaliation (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer proffered legitimate, non-discriminatory reason for disciplinary investigation and non-promotion (outstanding allegations of law-enforcement misconduct). That officer presented expert testimony that he did not commit misconduct was not probative of the agency's discriminatory animus, as it did not tend to show that race of national origin was a factor.

Rivera v. Rochester Genesee Regional Transp. Auth., 702 F.3d 685, 116 FEP 1473 (2d Cir. 2012). Panel: LOHIER, Kearse, Droney. Claims on Appeal: 1. Title VII, § 1981, and N.Y. state law harassment (national origin, race). 2. Title VII, § 1981, and N.Y. state law retaliation (plaintiff #1). 3. Title VII, § 1981, and N.Y. state law retaliation (plaintiff #2). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant] 3. Reversed [plaintiff]. Grounds: 1. Latino employee presented genuine issue of material fact regarding national-origin motivation. While some of his internal complaints referenced personal conflicts, record included other evidence that alleged harassed referred to employee as "spic" and "Taco Bell," corroborated by non-party witness, plus physical bullying. African-American employee testified about being called a "nigger" by supervisor on various occasions and also bullied. Exact details about timing not required to avoid summary judgment. 2. Two disciplinary citations were not "materially adverse." 3. Thereat that employee could lose job for filing a discrimination complaint was "materially adverse."

EEOC v. KarenKim, Inc., 698 F.3d 92, 116 FEP 385 (2d Cir. 2012). Panel: Per curiam (Katzmann, Wesley, Lynch) [KATZMANN, concurring]. Claim on Appeal: Title VII discrimination (sex). Disposition Below: Judgment for EEOC after jury trial, but denial of injunctive relief [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court abused discretion by failing to award injunctive relief in sex harassment case to prevent reoccurrence of hostile work environment. Although manager who committed harassment no longer worked for employer, he remained in romantic relationship with company owner, could be reemployed at any time and continued to visit store location. An injunction addressed to these issues (barring reemployment and store visits by harasser) might be sufficient.

Noel v. New York State Office of Mental Health Central New York Psychiatric Center, 697 F.3d 209, 115 FEP 1569 (2d Cir. 2012). Panel: PARKER, Katzmann, Wesley. Claim on Appeal: Title VII retaliation. Disposition Below: Enforcement of judgment [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Title VII awards constitute "wages" under the Internal Revenue Code and, as such, are subject to statutory withholding for Federal Insurance Contributions Act (FICA) tax and other deductions from a Title VII judgment for back and front pay in favor of plaintiff.

Bucalo v. Shelter Island Union Free Sch. Dist, 691 F.3d 119, 115 FEP 1291 (2d Cir. 2012). Panel: LYNCH, Winter, Straub. Claim on Appeal: ADEA, Title VII (gender) and N.Y. state law hiring and retaliation. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee not entitled to judgment as a matter of law where employer was unable, because of decision maker's death before trial, to present first-hand testimony of reason plaintiff was not hired. Employer under such circumstances could substitute circumstantial evidence, i.e., resumes that agent reviewed in making decision. McDonnell Douglas framework did not compel entry of judgment for plaintiff, where jury could have found against her on prima facie case (disputed issues of fact whether decision maker was aware of employee's age, and whether there was a causal connection to fail to hire). Resumes admissible to meet burden of production under business-records exception to hearsay.

M.O.C.H.A. Society, Inc. v. Brewer, 689 F.3d 263, 115 FEP 929 (2d Cir. 2012). Panel: RAGGI, Walker [KEARSE, dissenting]. Claim on Appeal: 1. Title VII disparate impact promotions (race). 2. Title VII disparate treatment promotions (race). Disposition Below: 1. Judgment after a jury trial [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Regarding 1998 test, employees met prima facie case of showing disparate impact of Lower Level Fire Promotion test on promotions of firefighters to lieutenant (African-American pass rate only 57.3% of whites). Employer-specific data not required for employer to meet disparate impact burden of proving business-necessity and job relatedness. Fire departments in state (excepting NYC and Rochester) relied on common standards developed for promotions. Judge could have found each of the Guardian I elements met here. (a) Suitable job analysis can be based on other cities' data, despite Buffalo did not meaningfully participate, where city could have reasonably induced statewide job analysis covered same critical job skills. Employer not required to present expert testimony to establish link between state survey to Buffalo where city employee could testify from personal knowledge about survey comparison. (b) Reasonable competence in design established by evidence that professional test-writers were involved, department worked off of experience from prior tests, received feedback from test administrators; judge could also find, even absent proof of a predictive validation study, that exam was content (not construct) validated. Job analysis included statewide surveys to determine tasks fire lieutenants perform. Plaintiffs barred from challenging 2002 test owing to collateral estoppel from decision on 1998 test. Although plaintiffs could have raised new challenge to 2002 test, this was waived due to stipulation that tests were equivalent and finding on 1998 test would be determinative of 2002. Failure of city to respond substantively to interrogatory on this issue not a waiver where district court in its discretion declined to treat as admission. 2. Organization waived right to jury trial when it submitted job relatedness to bench trial. Knowingly continuing to use test with disparate impact on minorities does not constitute disparate treatment where employer supported its decision by business necessity.

Chin v. The Port Authority of N.Y. & N.J., 685 F.3d 135, 115 FEP 720 (2d Cir. 2012). Panel:LIVINGSTON, McLaughlin, Cabranes. Claim on Appeal:1. Title VII pattern-or-practice promotion (race). 2. Title VII disparate impact and treatment promotions for seven plaintiffs (race). 3. Title VII disparate impact and treatment promotions for four plaintiffs (race). Disposition Below: 1. Judgment after a jury trial (total $1.6 million for seven plaintiffs) [plaintiff]. 2. Judgment after a jury trial (total $1.6 million for seven plaintiffs) [plaintiff]. 3. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Reversed [defendant]. 2. Affirmed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Pattern-or-practice method of proof may not be used by private, individual plaintiffs. 2. Events prior to 300 days before filing charge (August 2, 2000) admissible as background evidence. District court did not err in admitting and adopting plaintiffs' statistical evidence. Expert could use pre-limitations datas background. Although expert erred in failing to compare percentage of Asian-Americans in supervisory positions against percentage of Asian-Americans in eligible pool (instead of Asian-Americans officers as a whole, plaintiffs' verdict supported by other statistical evidence. Though statistical significance fell above thumbnail 5% standard (due-to-chance figure was 13%), finding was bolstered by other evidence such as that no Asian-Americans were promoted and individual comparative evidence of plaintiffs' superior credentials to those who were promoted. Choosing to end study period at 2001 (date of charge) instead of extending to 2005 acceptable. Plaintiffs established that multiple step process was "not capable of separation for analysis" under 42 U.S.C. § 2000e-2(k)(1)(B)(I). Neither recommendation by the Chief's Board nor commanding officers' recommendations could not be separated, as such recommendations were neither necessary nor sufficient for promotion. Anecdotal evidence admissible; plaintiffs' not tasked with producing direct evidence of racial animus, where they presented comparative evidence instead. District court did err by applying continuing violation theory to award damages for promotions denied beyond the limitations period. Under Morgan promotions are discrete events, and each denial of promotion constitutes a new claim, even if each incident can arguably be brought within the umbrella of a general policy. Same rule applies under Lewis for disparate impact; a denial of a promotion is a "use" of a practice that commences the limitations period. Jury could properly have award relief (and court properly awarded equitable relief in the form of promotions, and salary and pension adjustments) for more candidates than who actually received promotions during a particular cycle, where there was evidence that the number of promotions was not fixed and could have been enlarged. It was nevertheless error to award back pay for effects of denials of 1999 promotions. Likewise, compensatory damages and equitable relief related to pre-2000 events must be vacated. 3. District court did not err in excluding expert testimony of Dr. Kathleen Lundquist on promotion procedure, FRE702, on ground that there was no evidence that her conclusions were based on established principles or methods, and remaining testimony that explicated comparative evidence between individual plaintiffs and successful candidates would not be helpful to jury where it was essentially argument. Adverse-inference sanctions for spoliation (destruction of 1999 promotion list) properly denied in light of limited usefulness of evidence and otherwise ample comparative evidence supporting plaintiff.

Townsend v. Benjamin Enterp. Inc., 679 F.3d 41, 114 FEP 1537 (2d Cir. 2012). Panel: KOELTL, Livingston, [LOHIER, concurring]. Claim on Appeal: 1. Title VII and N.Y. state law retaliation, plaintiff #1. 2. Title VII and N.Y. state law harassment (sex), plaintiff #2. Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial ($30,400 damages, $141,308 attorney fees) [plaintiff]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [plaintiff]. Grounds: 1. Title VII participation clause does not reach cooperation by HR employee in a pre-charge filing, workplace harassment investigation (expressing no opinion on split in circuits about post-charge filing investigation), because such investigation is not a procedure "under" Title VII. Plaintiff conceded, prior to decision on Crawford, that she did not seek relief under opposition clause because she personally did not manifest good-faith belief in harassment allegation. 2. Affirming decision to hold harasser and officer of company liable on "alter ego"/proxy theory. Faragher/Ellerth defense does not apply when harasser occupies high enough position in company for actions to be imputed automatically to the company. Jury could have reasonably concluded that harasser, who was company's only VP, second in command behind spouse-president, and principal shareholder (collectively with spouse and children), in addition to leadership role in setting personnel and other policy. Jury instruction of alter-ego was erroneous (because it allowed such liability to be imposed solely on having supervisory authority over plaintiff,), but error was harmless, as no rational jury would have failed to find harasser to be alter-ego. Individual liability for spouse/president of organization allowed under state HRA § 296(1); that plaintiff's complaint erroneously cited § 296(6) instead does not affect merits of claim, and there was no claim of prejudice to defendant due to the error. Rule 68 offer of $50,000 that exceeded judgment amount of $30,400 not controlling, where at time offer was made, plaintiff's claim included reasonable fee. District court did not abuse discretion at calculating value of fee not at $250 contract rate, but $350 market rate. District court properly declined to reduce lodestar based on relatively low verdict. Proper adjustments were made for time spent on unsuccessful constructive-discharge claim.

Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 115 F.3d 399 (2d Cir. 2012). Panel: HALL, Jacobs, Scheindlin. Claim on Appeal:Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Record that established that female area supervisor deliberately touched or felt female employee's breasts on There occasions over five months was sufficiently severe to constitute each such incident, supervisor appears to have contrived to be near employee for no legitimate reason. Such contact is not minor or incidental. Indeed, direct contact with intimate body parts is typically considered severe. Suggestion that events might have been accidental erroneously draws inference in favor of summary judgment movant. District court repeatedly minimized incidents by referring to them as "brushing" rather than touching. Factual issues also remain to be tried on Faragher/Ellerth defense;dispute over specific nature and content of employee complaint to HR.

Brown v. City of Syracuse, 673 F.3d 141, 114 FEP 992 (2d Cir. 2012). Panel: HALL, Jacobs, Scheindlin. Claim on Appeal:Title VII (race), §§ 1981 and 1983, and N.Y. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Guilty plea for criminal offense of endangering the welfare of a child precluded employee, by "law of the case" doctrine, from challenging termination as "adverse employment action," as termination in this setting was automatic and resulted from uniform application of law ("oath of office" offense). Suspension with pay during an investigation of criminal charges not an "adverse action." No evidence of racially selective prosecution.

Lore v. City of Syracuse, 670 F.3d 127, 114 FEP 466 (2d Cir. 2012). Panel: KEARSE, Sack, Lynch. Claim on Appeal: 1. Title VII and N.Y. state law retaliation. 2. N.Y. state law demotion (sex). State law contract and First Amendment claims (not discussed here). Disposition Below: 1. Judgment after a jury trial ($417,955 damages and attorney fees) [plaintiff] 2. Summary judgment [defendant] Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Employer waived, by not presenting in a timely, pre-judgment Rule 50(a) motion, any challenge to award of reputational or emotional distress damages to employee. No error in admitting law enforcement expert witness for plaintiff sho testified that department's treatment of employee reflected retaliation for filing complaints of discrimination. Not a proper basis to exclude that expert testifies on "ultimate conclusion" as such testimony is sanctioned under FRE704 for lay testimony. Panel expresses doubt that his testimony assisted the jury, but any error was harmless in light of fact that jury made "painstakingly" exact findings on each of four defendants (finding liability only for one). District court was not required to instruct jury regarding discrimination claim that was dismissed prior to trial, where jury was charged repeatedly that merits of discrimination claim was not before it. Employer waived objections to jury verdict form. On cross-appeal, district court erred under state HRL by granting qualified immunity to Corporation Counsel who allegedly falsely accused plaintiff of theft in press statement; even if his statements met "discretionary" standard, individual defendant cannot be said to have met burden of showing that statements were not made in bad faith. Jury erroneously denied opportunity to decide the qualified immunity issue. Plaintiff's appeal of denial of discovery sanctions denied; decision was not abuse of discretion and it is doubtful that such challenges were properly preserved below. Award of $210 hourly rate for attorney fee affirmed over request for $275. Not an abuse of discretion to deny remittitur $150,000 on emotional distress, where employee and her mother testified about her headaches, abdominal pain, insomnia, anxiety and depression. Where retrial of some individual defendants might result in duplicative relief, court orders alternative that plaintiff can accept current judgment or court will vacate judgment against all defendants for retrial. 2. There was genuine issue of material fact whether as removal as spokesperson for police department was materially adverse employment action, where transfer was objectively from elite position (public information officer in mayor's office) to one of less prestige (uniformed patrol, then uniformed community relations). Though rank and salary remained the same, transfer to role with less opportunity for advancement. Mayor who made decision and city were both proper defendants.

Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 25 A.D. Cases 929 (2d Cir. 2011). Panel: Per Curiam (Miner, Cabranes, Wesley). Claim on Appeal: ADA termination. Disposition Below:Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: For right-to-sue letter, employee's 90-day limitations period accrues when the letter is first received either by employee or employee's counsel.

Schwartz v. Merrill Lynch & Co., 665 F.3d 444, 113 FEP 1479 (2d Cir. 2011). Panel: CHIN, Katzmann [GLEESON, dissenting]. Claim on Appeal: Title VII distribution of accounts (sex). Disposition Below: Arbitration award upheld [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No basis for vacating Panel Award denying employee's claims. None of the grounds articulated in FAA § 10(a) is applicable. A final decision was reached by the Panel; no evidence of fraud, corruption, or use of undue means to reach that decision; and no evident partiality, corruption, misconduct, or misbehavior on the part of the arbitrators. Although employee contends that the Panel should have considered all of her pre-April 2001 evidence as to discriminatory practices after Ledbetter Act was adopted, the temporal limitation imposed by the arbitrators was based on their interpretation of the release, in which employee expressly relinquished any claims 'related to' her employment with employer prior to the April 2, 2001 date on which she signed the Release. Further, the Panel did not rigidly exclude all evidence of conduct by employer prior to April 2, 2001; rather it allowed the introduction of evidence as to events that occurred as much as six months before that date. No need to decide in this case whether a retroactive change in governing law is a ground for vacatur of an arbitration award under an agreement that guarantees the protection of applicable law, because the panel did not limit the presentation of evidence on the basis of Ledbetter Act.

Tepperwien v. Entergy Nuclear Operations, 663 F.3d 556, 113 FEP 1153 (2d Cir. 2011). Panel: CHIN, Katzmann [GLEESON, dissenting]. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed as a matter of law to establish that he suffered, collectively or separately, an adverse employment action based on four "fact-findings" and other miscellaneous activity. That an employer opens up an investigation, one that (supposedly) does not cause the employee any expense or harm to his employment status, does not subject it to retaliation liability. The trial record established, that (1) "fact-finders at Entergy were not disciplinary in nature," (2) "there was good reason for Entergy to initiate these fact-finders, and thus no reasonable employee would have found them to be materially adverse or stigmatizing," and (3) "while fact-finders certainly could lead to disciplinary action, they did not here." Panel makes note of the security-command-control environment in this case: "The security unit at Indian Point was akin to a law enforcement or quasi military unit, with a chain of command, lieutenants and chiefs, handcuffing exercises, the deployment of weapons, and the use of BREs. The task of securing a nuclear power plant raised significant safety concerns not found in most work environments, and, understandably, there was little tolerance for mistakes and rule violations, or even perceived mistakes. It is not surprising that Tepperwien was treated in a rough and tumble manner rather than with kid gloves or in a genteel fashion." One incident leading to a warning being put in the file was not material because it did not cause any material consequences and was removed six weeks later. Thereats of termination and snubbing were not material. Finally, in any event, the $500,000 punitive damage verdict could not stand anyway, because the employer established as a matter of law that it did not recklessly disregard the employee's Title VII rights and took affirmative steps to correct incidents that he complained about during the year before his resignation.

Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,113 FEP 708 (2d Cir. 2011). Panel: Per curiam (Miner, Cabranes, Hall). Claims on Appeal: Title VII and N.Y. state law harassment (sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under "sham affidavit" rule, employee at summary judgment stage could not contradict statements in complaint and during testimony that alleged harasser was not "supervisor" and that she had not made prior complaint to the employer. Hence, employee failed to present genuine issue of material fact regarding the supervisor-status of the harasser or whether the employer was on notice about the harassment. On retaliation claim, employee failed to allege a protected activity.

Briscoe v. City of New Haven, 654 F.3d 200, 112 FEP 1793 (2d Cir. 2011). Panel:  JACOBS, Winter Cabranes. Claim on Appeal: Title VII disparate impact. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Otcome on Appeal: Reversed [plaintiff]. Grounds: Minority firefighter not precluded from challenging New Haven compliance with mandate in Ricci v. DeStefano, 129 S. Ct. 2658 (2011), on disparate impact grounds. Plaintiff was not a party to prior action, not does he fall into an exception allowing non-party preclusion. Nor is plaintiff barred by 42 U.S.C. § 2000e-2(n), because he had no notice and opportunity to object to judgment. The Ricci affirmative defense of the "strong basis in evidence" standard only applies, by its own terms, to disparate treatment cases, not disparate impact claims (notwithstanding one stray line in the opinion that suggests otherwise).

Joseph v. HDMJ Restaurant, Inc., 648 F.3d 58, 112 FEP 1703 (2d Cir. 2011). Panel:  KATZMANN, Hall, Jones. Claim on Appeal: Title VII and ADA discrimination and retaliation. Disposition Below: Interlocutory appeal on partial denial of motion to dismiss [plaintiff]. Outcome on Appeal: Question certified. Grounds: When a plaintiff brings a discrimination claim before the New York State Division of Human Rights and commences an untimely Article 78 proceeding challenging the DHR's adverse determination of that claim, does the state court's dismissal of the Article 78 proceeding pursuant to the time limitations set forth in N.Y. Exec. Law § 298 amount to an adjudication "on the merits" for res judicata purposes, such that the plaintiff cannot litigate her claim in another jurisdiction with a longer, unexpired limitations period?

Thomas v. iStar Financial, Inc., 652 F.3d 141 (2d Cir. 2011). Panel: Per curiam (Hall, Livingston, Bianco). Claim on Appeal: Title VII and NYC law retaliation. Disposition Below: Judgment after a jury trial (back/front pay and compensatory damages, plus $1.6 million punitive damages, remitted to $190,000) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Noting open question whether court is obliged under Seventh Amendment to offer conditional remittitur for punitive damages. It is permissible for parties to stipulate jointly to entry of $190,000 punitive award subject to plaintiff's right to appeal determination that $1.6 million award was not excessive. On the merits, panel affirms that award was excessive: no physical injury or danger to health involved, ratio between punitive and compensatory awards was 5.7 to 1, maximum local law fines would be $250,000. Where award covers both federal and local law claims and the awards do not distinguish the source of law, prejudgment interest is awarded at the federal rate rather than the higher state-law rate. Race harassment claim properly dismissed as insufficiently sever or pervasive. Punitive award upheld on ground that evidence established reckless behavior. Employer waived objection to trying back pay to jury.

Bergerson v. Office of Mental Health, 652 F.3d 277, 112 FEP 1313 (2d Cir. 2011). Panel: MINER, Kearse, Chin. Claims of Appeal: Title VII and NY state law discrimination and harassment (sex). Disposition Below: Judgment after a jury trial ($580,000 compensatory damages, capped at $300,000, no back/front pay) [plaintiff]. Outcome on Appeal: Affirmed, and remanded for award of back/front pay [plaintiff]. Grounds: Award of backpay is not encompassed within a jury's award of compensatory damages under 42 U.S.C. § 1981a. Because jury never heard evidence on loss of wages, court erred in concluding that a sufficiently large compensatory award substitutes for make-whole relief. Claim remanded for further bench hearing on make-whole relief, including back- and front-pay awards. State law claims were abandoned by plaintiff and district court did not err in declining to reinstatement them. District court did not err in awarding market rate of $210 instead of $275.

Ridinger v. Dow Jones & Co., Inc., 651 F.3d 309, 112 FEP 1221 (2d Cir. 2011). Panel: KEARSE, McLaughlin, Livingston. Claims of Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Release enforceable under OWBPA. Use of terms "waiver," "release," and "covenant not to sue" not confusing. Word processing error that caused word "manager" to appear in place of employee does not render agreement confusing. No genuine issues of material fact about employee's ability to understand agreement. Agreement adequately advised employee to seek advice of an attorney.

Jock v. Sterling Jewelers, Inc., 646 F.3d 113, 112 FEP 1137 (2d Cir. 2011). Panel: HALL, Pooler [WINTER, dissenting]. Claims of Appeal: Title VII and EPA compensation. Disposition Below: Order to compel arbitration [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred by reviewing the arbitrator's award - granting leave for the action to proceed as a class arbitration - for whether it was legally correct, rather than for whether the arbitrator exceeded authority in deciding it. Under FAA standard, arbitrator did not exceed her authority in construing agreement to permit the plaintiffs to proceed with their effort to certify a class in the arbitration proceedings. Interpretation of arbitration agreement (the RESOLVE program) was also reasonable. "It is clear from the terms of the arbitration agreement that Sterling required its employees to sign that the parties intended to make available in arbitration all remedies and rights that would otherwise be available in court or before a government agency.

United States v. New York City Board of Education, 650 F.3d 65, 112 FEP 193 (2d Cir. 2011). Panel: CALABRESI, Cudahy [RAGGI, concurring in the judgment]. Claims of Appeal: Challenge to permanent hires and retroactive seniority conferred on minority and women applicants (reverse discrimination). Disposition Below: Judgment after a bench hearing [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Ricci does not impose a new § 703(a) summary judgment burden-shifting framework, but instead constitutes a straightforward application of the first two steps of McDonnell Douglas. Under this method, the 1999 settlement agreement was explicitly race- and sex-based, thereby giving rise to the required inference of discrimination and requiring the employer to proffer a valid reason for granting retroactive seniority. Because the judgment is based in part on findings that the district court made based on live hearings, "clear error" review would apply to those findings. Settlement agreement is not properly classified as an "affirmative action" plan, because it is principally made up of Title VII § 703(g) make-whole relief for selected applicants. To be a valid Title VII affirmative action plan, an employer action must benefit all members of a protected class. Voluntary implementation of the settlement agreement is not an affirmative action plan. Section 703(a) "draws a distinction between affirmative action plans, which are intended to provide ex ante benefits to all members of a racial or gender class, and make-whole relief, which is intended to provide ex post benefits to specified individuals who have suffered discrimination. And where this latter form of benefits is at issue, the employer may not invoke the 'affirmative action' defense of Johnson and Weber." In awarding prospective relief, judge must decide what is the purpose being accomplished: make-whole relief to individual people who are victims of past discrimination, or non-individualized, class-wide affirmative action plan to dismantle prior patterns of discrimination and prevent future discrimination. Party defending race-conscious hiring must show (1) a prima facie case of disparate impact against itself (or perhaps a strong basis in evidence of a prima facie case), and (2) a strong basis in evidence either (a) that the employment practice having the disparate impact was neither job-related nor consistent with business necessity, or (b) that there was an equally valid, less discriminatory alternative, that the employer had refused to adopt, that would have served the employer's needs.four criteria for testing a Ricci defense: (1) "the standard is objective, not subjective, and it therefore focuses on the strength of the evidence of liability, not the strength of the employer's fear of litigation"; (2) "the strength of the evidence of disparate-impact liability is measured at the time the employer took the race- or gender-based action"; (3) "either an actual prima facie case of disparate-impact liability is required, or a strong basis in evidence of a prima facie case is required"; (4) "the test requires that the employer have a strong basis in evidence either . . that its challenged employment procedures are not job-related, or . . . that there was a less discriminatory alternative procedure which the employer refused to adopt." Recruiting practices may be challenged for Title VII disparate impact, and that "potential applicants for employment are 'applicants for employment' for § 703(a)(2) purposes." The Teamsters remedial burden-shifting applies to disparate impact as well as to pattern-or-practice cases. Title VII § 706(g) does not apply to and does not limit the kinds of policies that an employer can undertake to correct discrimination, voluntarily or by way of settlement; it is a limit only on what a court may award. Employees under a collective bargaining agreement challenging a breach of their contractual rights may not proceed under Title VII; they must grieve/arbitrate such claims.

650 F.3d 65, 112 FEP 193 (2d Cir. 2011

650 F.3d 65, 112 FEP 193 (2d Cir. 2011

Thomas v. iStar Financial Inc., 629 F.3d 276, 110 FEP 1761 (2d Cir. 2010). Panel: Per curiam (Hall, Livingston, Bianco). Claims of Appeal: Title VII and NYC law retaliation. Disposition Below: Judgment after a jury trial (back and front pay, compensatory damages, and $1.6 million punitives, remitted to $190,000) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff could not appeal of remitted award to which he consented in the district court. Plaintiff not entitled to award of prejudgment interest at the higher New York rate where the award compensated him for both the federal and state claims without differentiation. District court erred by correcting award by entering reduced rate of interest after appeal was already filed, but panel grants district court leave to enter corrected award nunc pro tunc. Sufficient evidence of recklessness to support punitive damage award. Although Tittle VII back pay award would ordinarily have been decided by a jury, defendant failed to object at trial and thus impliedly consented to a jury award.

El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 110 FEP 1764 (2d Cir. 2010). Panel: Per curiam (McLaughlin, Pooler, Wesley). Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who was fired There weeks after complaining about being called a "Terrorist Muslim Taliban" arguably presented a genuine issue of material fact about his prima facie case, but failed as a matter of law to present an issue of pretext where he not rebut legitimate, non-discriminatory reason for termination (resume fraud).

Estate of Hamilton v. City of New York, 627 F.3d 50, 110 FEP 1537 (2d Cir. 2010). Panel: Per curiam (Jacobs, Walker, Cabranes). Claims on Appeal: 1. Title VII, §1983, NY and NYC law promotion (national origin, race, sex). 2. Title VII, §1983, NY and NYC law demotion (national origin, race, sex) N.Y. Labor Law 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. Evidence that promotion process changed after plaintiffs were denied advancement properly excluded under FRE 407 in disparate treatment case (though might be admissible in a disparate impact case). Statement by one executive that plaintiff was not "supervisory material" was properly excluded as hearsay (argument that statement was party admission under FRE801(d)(2)(D) was waived). Exclusion of EEOC determinations - finding probable cause that employees suffered national origin discrimination - not an abuse of discretion. Plaintiffs' affidavits stating that supervisor said he was trying to "change the face" of the position estopped by deposition testimony that employees had never heard remarks that they considered discriminatory. Plaintiffs failed to establish that proffered justifications for promotion decisions (performance evaluations and interviews) were pretextual, and foreign-born candidates other than plaintiffs fared well. 2. Reclassification of plaintiffs from Criminalist III from supervisory to non-supervisory supported by legitimate, non-discriminatory reason (that with recent promotion, there was no need for the addition al supervisors).

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, 584 F.3d 487, 107 FEP 897 (2d Cir. 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).

subscribe to this blog's feed subscribe to this blog's feed

tell us about your case

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

facebook twitter linked in

our office locations

Outten & Golden LLP
685 Third Avenue, 25th Floor  
New York, NY 10017  
Phone: 212-245-1000
Map and Directions

Outten & Golden LLP
161 North Clark Street
Suite 1600
Chicago, Il 60601  
Phone: 312-809-7010
Map and Directions

Outten & Golden LLP
One California Street, 12th Floor
San Francisco, CA 94111
Phone: 415-638-8800
Map and Directions

Outten & Golden LLP
601 Massachussetts Avenue NW
Second Floor West Suite 200W
Washington, DC 20001
Phone: 202-847-4400
Map and Directions