2d Circuit Issues Major FMLA Case Rejecting But For Standard

Woods v. Star Treatment, ___F.3d___(2d Cir. July 19, 2017), is an important FMLA case to be aware of. The 2d Circuit holds that the "motivating standard" as opposed to the "but for" causation standard is applicable in FMLA discharge cases. This standard is much easier for plaintiffs to meet.
Interestingly, the 2d Circuit also held that the court erred by allowing the jury to draw a negative inference because of the plaintiff's invocation of the 5th Amendment during a deposition reasoning:

The instruction accurately states the law insofar as “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Such adverse inferences are appropriately admitted, however, only if they are relevant, reliable, and not unduly prejudicial. See Brink’s Inc. v. City of New York, 717 F.2d 700, 710 (2d Cir. 1983). We conclude that the district court exceeded the bounds of its discretion in admitting and permitting the adverse inferences to be drawn here. First, most of the questions in Woods’s deposition were merely whether Woods had been accused of something. Even assuming her answers would have been “yes,” accusations have little, if any, probative value because the innocent and guilty alike can be accused of wrongdoing. Without more, accusations do not “impeach the integrity or impair the credibility of a witness.” Michelson v. United States, 335 U.S. 469, 482 (1948). Thus, Woods suffered acute prejudice from the admission of adverse inferences based on her answers to those deposition questions and from the court’s related instructions. 22 Second, Woods suffered even harsher prejudice from the admission of an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of a conviction only when the crime is a felony or the court “can readily determine that establishing the elements of the crime” required proving a “dishonest act or false statement.” The district court here failed to consider whether the requirements of Rule 609(a) were met. The results of a Rule 609(a) analysis are especially important in this case because the record is unclear as to what, if any, crime Woods was convicted of. Indeed, there was only a reference to “disorderly conduct,” which is not necessarily “dishonest,” much less “immoral” or “unethical.” An adverse inference based upon Woods declining to answer that deposition question is of questionable probative value on the issue of her credibility. Third, the danger of unfair prejudice is high when a jury is told that a witness declined to answer a question by invoking the Fifth Amendment; the implication is, at best, that the witness refused to answer because she had something to hide. We tolerate some danger of prejudice from such inferences in civil cases, unless it substantially outweighs the probative value of those inferences. See Brink’s Inc., 717 F.2d at 710. Here, the way in which Woods’s Fifth Amendment invocation was raised and later argued at closing elevated the prejudice to an intolerable level. Woods’s Fifth Amendment invocation 23 was repeatedly emphasized—defense counsel raised it during Woods’s crossexamination, the district court instructed the jury on it, and defense counsel argued it during his summation. Although defense counsel attempted to moderate this line of argument, see J. App’x 632 (“I am not hanging my hat on [the] Fifth Amendment invocation.”), he did so only after forcefully highlighting the inferences that the jury was permitted to draw. In arguing that the entire case hinged on Woods’s credibility, defense counsel told the jury “you are permitted in this case to infer that Ms. Woods was the subject of a government grand jury investigation, was accused of fraud, lying, fabricating events, and misrepresenting facts to the government and was then convicted of a crime.” Id. Defense counsel’s statement was consistent with the district court’s instruction, but the inferences that the jury was permitted to draw did not necessarily mean anything with respect to Woods’s credibility or character for truthfulness. Apart from allowing such vigorous argument on this point, the district court erred by failing to engage in the required Rule 403 analysis. See Brink’s, Inc., 717 F.2d at 710. In our view, the unfair prejudice Woods suffered substantially outweighed the minimal, if not immaterial, probative value of Woods’s Fifth Amendment invocation. Accordingly, it was error for the district court to admit those invocations into evidence and to instruct the jury as to what it was allowed to infer from them. 

Pending Improper Practice Does Not Bar Related Arbitration

I bring Matter of City of Watertown and Watertown Professional Firefighters, ___A.D.3d___(4th Dept. July 7, 2017), to your attention for several reasons. First, in a relatively short opinion, the court does a nice job summarizing the standards to stay arbitration under New York law. Second, the court holds that a pending administrative case, presumably one at PERB, would not bar arbitration over a similar issue. As the court explained:

"It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, we do not determine the merits of the grievance and instead determine only whether the subject matter of the grievance is arbitrable" (Matter of City of Syracuse [Syracuse Police Benevolent Assn., Inc.], 119 AD3d 1396, 1397; see CPLR 7501; Matter of Board of Educ. of Watertown City Sch. Dist. [Watertown Educ. Assn.], 93 NY2d 132, 142-143). "Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance' . . . If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their [CBA]. If there is a prohibition, our inquiry ends and an arbitrator cannot act" (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 519; see Syracuse Police Benevolent Assn., Inc., 119 AD3d at 1397; Matter of Mariano v Town of Orchard Park, 92 AD3d 1232, 1233).
We reject the City's contention on appeal that arbitration of respondent's grievance with respect to the City's failure to maintain minimum staffing levels is prohibited by law. Under the first prong of the arbitrability test, "the subject matter of the dispute controls the analysis" (Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, 280). Contrary to the City's contention, a pending administrative proceeding concerning respondent's alleged improper practices does not preclude arbitration inasmuch as there is no indication that the "particular subject matter of the dispute" is not "authorized," i.e., not " lawfully fit for arbitration' " (id.).
We reject the City's further contention that the parties did not agree to arbitrate the grievance. " Our review of that question is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom' " (Matter of Wilson Cent. Sch. Dist. [Wilson Teachers' Assn.], 140 AD3d 1789, 1790; see Matter of Niagara Frontier Transp. Auth. v Niagara Frontier Transp. Auth. Superior Officers Assn., 71 AD3d 1389, 1390, lv denied 14 NY3d 712). "Where, as here, the [CBA] contains a broad arbitration clause, our determination of arbitrability is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA' "

Employer Policy that Bans Use of Cameras Violates the NLRA

T-Mobile USA, Incorporated v. NLRB, ___F.3d___,No. 16-60284 (5th Cir. July 25, 2017), is an important decision to be aware of. The Fifth Circuit enforced a National Labor Relations Board  which held that an employer's policy that banned the use of "cameras, camera phones/devices, or recording devices (audio or video) in the workplace" was unlawful. The court summarized the relevant standard as follows:

Section 7 of the NLRA provides a declaration of statutory policy: “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) of the Act in turn provides enforcement of that policy by stating that it shall be an “unfair labor practice” to “interfere with, restrain, or coerce employees in the exercise of the rights” protected by Section 7. 29 U.S.C. § 158(a)(1). Here, the “appropriate inquiry” is whether T-Mobile’s rules for workplace conduct violate § 8(a)(1) by chilling a reasonable employee in the exercise of his or her Section 7 rights. See Flex Frac Logistics, L.L.C. v. NLRB, 746 F.3d 205, 209 (5th Cir. 2014). Indeed, our precedent has previously noted that “[w]here the rules are likely to have a chilling effect, the Board may conclude that their maintenance is an unfair labor practice, even absent evidence of enforcement.” Id. (quoting Lafayette Park Hotel, 326 NLRB 824, 825 (1998)) (ellipses omitted). In order to determine whether a workplace rule violates Section 8(a)(1), this Court applies the two-part Lutheran Heritage framework. First, the Court decides “whether the rule explicitly restricts activities protected by Section 7.” Flex Frac, 746 F.3d at 208-09 (quoting Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004)); see also NLRB v. Arkema, Inc., 710 F.3d 308, 318 (5th Cir. 2013). Second, even if the restriction is not explicit, the rule may still violate Section 8(a)(1) where “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in Case: 16-60284 Document: 00514086892 Page: 6 Date Filed: 07/25/2017 No. 16-60284 Cons. w/ No. 16-60497 7 response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Id. at 209 (quoting Lutheran Heritage, 343 NLRB at 647).8 When construing a work rule, the Board must “give the rule a reasonable reading.” Lutheran Heritage, 343 NLRB at 646. Additionally, the Board “must refrain from reading particular phrases in isolation” and “must not presume improper interference with employee rights.” Id. The appropriate, objective inquiry is not whether the rules “could conceivably be read to cover Section 7 activity, even though that reading is unreasonable,” but rather whether “a reasonable employee reading the[] rules would . . . construe them to prohibit conduct protected by the Act.” Id. at 647 (emphasis added). The “reasonable employee,” although not specifically defined in Lutheran Heritage or subsequent jurisprudence, refers to a hypothetical, objective standard analogous to the “reasonable person” in tort law. Cf. Restatement (Second) of Torts § 283 (1965) (“[T]he standard of conduct to which [an actor] must conform to avoid being negligent is that of a reasonable man under like circumstances.”). In this case, where the record does not suggest that the rules have been applied in the context of union or collective activity, the “reasonable employee” is a T-Mobile employee aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA. Indeed, “[the Board] must not presume improper interference with employee rights.” Lutheran Heritage, 343 NLRB at 646. Here, there is no contention that the rule explicitly restricts protected activity, or that the rule was promulgated in response to union activity, or that the rule has been applied to restrict the exercise of protected activity; the NLRB only alleges generally that employees would reasonably construe the language to prohibit protected activity. 

Everything You Wanted To Know About Defamation Law

Tannerite Sports v. NBC, ____F.3d___(2d Cir. July 25, 2017), though not an employment law case, is brought to your attention because the court exhaustively examines defamation under New York Law. One interesting aspect is that the court states that New York's stringent pleading requirements do not apply in federal court actions because federal courts are governed by the Federal Rules of Civil Procedure. As the court explains in footnote 10:

New York state law requires that, “[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint,” Nowak v. EGW Home Care, Inc., 82 F. Supp. 2d 101, 113 (W.D.N.Y. 2000) (emphasis added) (quoting N.Y. C.P.L.R. § 3016(a)). Although federal pleading standards, not state standards, govern this matter, see Kelly, 806 F.2d at 46, the strictness of New York’s law reflects the importance of giving defendants notice of why any alleged statements were defamatory.  Similarly, we note that stricter rules for defamation pleading prevailed under earlier pleading regimes, see, e.g., Foltz v. Moore McCormack Lines, Inc., 189 F.2d 537, 539 (2d Cir. 1951), and although we do not suggest a return to those standards, they underline the importance of receiving proper notice of a defamation claim.

Pro Se Complaints Continue To Be Liberally Construed

McCloud v. Jewish Guild for the Blind, ___F.3d___(2d Cir. July 19, 2017), is an interesting case. In this case, plaintiff failed to check a box which indicated that she wished to bring a complaint under state law as well as under Title VII. State and local law provides that there can be individual liability while under Title VII, individuals cannot be held responsible. The court excused the pro se plaintiff's failure to check the appropriate box, reasoning:

 That McLeod used a form complaint provided by the district court’s pro se office and failed to check the appropriate blanks should not dictate a contrary result. As we have noted in analogous circumstances, “[t]he failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits The district court appropriately construed other aspects of McLeod’s complaint to raise the strongest arguments they suggested. When asked in the form complaint to identify the bases for defendants’ discriminatory conduct, McLeod checked only the box for “disability or perceived disability.” She did not check the boxes for “age” and “color,” but supplied information in the blanks corresponding to those categories. She also failed to check the box for “gender/sex” discrimination and did not supply any information in the blank corresponding to that category. The district court nonetheless construed her complaint to raise discrimination claims on the basis of all four categories, based on her handwritten factual allegations. In addition, the court amended McLeod’s caption to assert claims against JGB, as would be proper under Title VII, although McLeod did not name JGB as a defendant. We see no reason to distinguish McLeod’s apparent errors with respect to the source of her claims from these other errors and omissions, which the district court appropriately corrected on the basis of McLeod’s handwritten factual allegations to reflect the appropriate legal bases for her claims. Of course, if prior to construing McLeod’s complaint, the district court had specifically advised McLeod of her ability to seek recourse under the NYSHRL and NYCHRL and she had expressly disavowed any intention to assert claims under those bodies of law, this would be a different case. However, the district court construed McLeod’s complaint as not raising such claims without consulting her. . . . That principle carries particular force where a pro se litigant is involved. Accordingly, because  McLeod’s factual allegations suggested claims under the NYSHRL and NYCHRL, the district court was required to construe her complaint as asserting claims under those laws, even if she failed to check the appropriate blank. We note that our holding is rooted in our well-worn precedent concerning a district court’s obligation to liberally construe pro se submissions.

Plaintiff Required To Disclose Pre-Termination Job Applications

Johnson v. Thompson, ___F. Supp. 2d___(S.D.N.Y. July 18, 2017), NYLJ July 24, 2017 (registration required), is an important decision to be aware of. In this sexual harassment employment discrimination case, the corporate defendants sought discovery of Plaintiffs PRE-TERMINATION efforts at finding other employment. 

The court ordered disclosure because this material met the definition of relevance. This was because in a sexual harassment case, Plaintiff has to establish that the workplace was both objectively and subjectively offensive and her efforts at finding work before her termination could potentially be relevant to her state of mind. As the court explained:

To be sure, "the subjective component of the test…does not require that [the plaintiff] quit or want to quit the employment in question." Davis v. United States Postal Service, 142 F.3d 1334, 1341 (10th Cir. 1998). Thus, the information that the Corporate Defendants seek would not be conclusive; but that does not mean that it is not relevant. Indeed, it could be quite persuasive. For example, in Arnold v. Reliant Bank, 932 F. Supp. 2d 840 (M.D. Tenn. 2013), the court found it "telling" that the plaintiff, who was alleging workplace harassment, nevertheless rejected a more lucrative offer from another employer. Id. at 855. The court observed that this "suggests that, at least during the months immediately preceding her termination, the plaintiff did not perceive her work environment to be hostile." Id. Thus, the requested information is plainly relevant to the subjective prong of Ms. Johnson's hostile environment claim.For similar reasons, it is also relevant to her claim for damages for emotional distress. Efforts that the plaintiff made to extricate herself from her position at JWT and find other work would be some evidence that she was experiencing distress. Indeed, if her search were unsuccessful, the resulting anxiety could itself be compensable. See Shannon v. Fireman's Fund Insurance Co., 156 F. Supp. 2d 279, 296 (S.D.N.Y. 2001) (finding that depression resulting from unsuccessful job search following termination justified award for emotional distress). Conversely, a fact finder could infer that the plaintiff felt little emotional distress if she took no action to find alternative employment or if she rejected offers of equivalent positions.

Employers May Have Duty to Accommodate Employee's Medical Marijuana Use

The Massachusetts Supreme Judicial Court issued an important which may have national consequences with respect to the use of medical marijuana.  The court held that medical marijuana users may bring disability discrimination claims against their employers for failing to reasonably accommodate after-work medical marijuana use. The decision in Barbuto v.Advantage Sales and Marketing,____N.E. 3d____(July 17, 2017) makes clear that Massachusetts employers can no longer rely on federal law prohibiting marijuana use and possession in enforcing “zero tolerance” drug policies. As the court explained:

Under Massachusetts law, as a result of the act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. Where, in the opinion of the employee's physician, medical marijuana is the most effective medication for the employee's debilitating medical condition, and where any alternative medication whose use would be permitted by the employer's drug policy would be less effective, an exception to an employer's drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under G. L. c. 151B, § 4 (16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job. 

Law School Enrollment Declined 25% Since 2010

Law Schools are Losing Smart Applicants is an interesting July 19, 2017 New York Law Journal article. In this brief article, the author explains that law school enrollments are down 25% since 2010 and this is largely because of the difficulty in finding lawyer employment:

Law school has lost its allure. Enrollment at American Bar Association-accredited law schools has plummeted 25 percent since 2010 and several law schools have or soon will close up shop for lack of demand.

Why? It’s a combination of factors including rising tuition, a stagnant job market and the perception that better options exist elsewhere.

So what’s it going to take to lure back would-be lawyers—especially those with the high Law School Admission Test scores that schools covet? (Applicants with LSAT scores of 160 or above are down a whopping 45 percent over the past six years.)

My own take on this is that the two primary factors are the cost of law school and the difficulty in obtaining lawyer jobs. With lower enrollment, it should become easier for new lawyers to find jobs. But something needs to be done drastically about the sky high tuition and expenses most law schools charge.

Most, if not all, law schools spend too much on faculty research. Tenure decisions are often based upon the number of law review articles and which journals those articles were published in. Today with the internet and computer assisted research, law review publication is much less important. Law schools would do themselves a favor if they put this money into teaching and into smaller classes.

Single Racial Slur May Be Enough To Establish Harassment

Castleberry v. STI Group, ___F.3d___(3d Cir. July 14, 2017), is an important case to be aware of. This case was brought by two against their staffing agency (STI) and the client company where they worked (Chesapeake). Plaintiff's allegations were as follows:

"Plaintiffs allege that, when they arrived at work on several occasions, someone had anonymously written 'don't be black on the right of way' on the sign-in sheets. They also assert that although they have significant experience working on pipelines (and more so than their non-African-American coworkers), they were only permitted to clean around the pipelines rather than work on them. They claim that, when working on a fence-removal project, a supervisor told Castleberry and his coworkers that if they had 'n[****]r-rigged' the fence, they would be fired. Seven coworkers confirmed that occurred. Following this last incident, Plaintiffs reported the offensive language to a superior and were fired two weeks later without explanation. They were rehired shortly thereafter, but then terminated again for 'lack of work.'"

The court then goes on to hold that a single slur can be actionable, reasoning:

"The Supreme Court's decision to adopt the 'severe or pervasive' standard-thereby abandoning a 'regular' requirement - lends support that an isolated incident of discrimination (if severe) can suffice to state a claim for harassment ... Otherwise, why create a disjunctive standard where alleged "severe" conduct - even if not at all 'pervasive' - can establish a plaintiff's harassment claim? Defendants would have us read that alternative element out of the standard. We may not do so."

Principal at Catholic School Cannot Bring a Claim Under Title VII

Fratello v. Archdiocese of New York, ____F.3d____(2d Cir. July 14, 2017), is an important decision concerning the "ministerial exception" under Title VII. The decision spans 48 pages and is very comprehensive.

Significantly, even though the Plaintiff's job was not "inherently religious", she held herself out as a spiritual leader and performed many religious functions. That was enough to conclude that the Plaintiff fell within the ministerial exception to Title VII. Therefore, her claim of sex discrimination was dismissed.

In theory, the ministerial exception exists to shield religious employers from discrimination claims that might compromise their freedom to choose religious leaders and teachers. Note that teachers of secular subjects at parochial schools are often allowed to bring Title VII claims if their job function is not essentially religious.

The court described the ministerial exception test as follows:

This is our first occasion to address the 8 doctrine since the Supreme Courtʹs unanimous decision in Hosanna‐Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 188 (2012) (recognizing a ministerial exception for employment‐discrimination claims).  In light of that decision, we conclude that in determining whether the ministerial exception bars an employment‐discrimination claim against a religious  organization, the only question is whether the employee qualifies as a ʺministerʺ  within the meaning of the exception.  See id. at 190‐91.  In this regard, Hosanna‐Tabor instructs us to assess a broad array of relevant ʺconsiderations,ʺ including but not limited to (1) the employeeʹs ʺformal title,ʺ (2) ʺthe substance reflected in 17 that title,ʺ (3) the employeeʹs ʺuse of th[e] title,ʺ and (4) ʺthe important religious 18 functions she performed.ʺ  Id. at 192.

SDNY Holds Sexual Orientation Claim is Protected Under Title VII

Philpott v. New York, ___F. Supp. 2d___,2017 US Dist. Lexis 6751 (SDNY 2017), is an important. decision. The court holds that sexual orientation discrimination is protected under Title VII. As the court explained:

The fact that plaintiff has framed his complaint in terms of sexual orientation discrimination and not gender stereotyping discrimination is immaterial. I decline to embrace an "illogical" and artificial [*7] distinction between gender stereotyping discrimination and sexual orientation discrimination, and in so doing, I join several other courts throughout the country. See Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1159 (C.D. Cal. 2015) (collecting cases) ("Simply put, the line between sex discrimination and sexual orientation discrimination is 'difficult to draw' because that line does not exist, save as a lingering and faulty judicial construct."). For these reasons, and in light of the evolving state of the law on this question, I hold that plaintiff's sexual orientation discrimination claim is cognizable under Title VII.

Though this is certainly where the law is going, I believe that this very issue is pending before the 2d Circuit.

EEOC Sues Adult Club For Failing To Hire Male Bartender

EEOC Sues Adult Club Over Refusal To Hire Male Bartender, NYLJ, July 3, 2017, is an interesting article from the New York Law Journal.
While the article correctly indicates that Title VII protects both male and females from discrimination on account of sex, what is missing from the article is a discussion of the bona fide occupational qualification or BFOQ defense. Is being female, a BFOQ for being a bartender at an adult club? I could not imagine that it is. I guess we will have to wait and see.