At Famighetti & Weinick PLLC, we have used 201-d in some social media contexts. Employees who have been targeted for “cancellation” based on provocative social media posts, leading to trouble at work, have called us for help. We have had occasion to argue to employers that 201-d protects the employees’ social media activity, but we have not had occasion to test the theory in court.

Another case, however, reached New York’s highest court which issued a decision. But, the decision punts on what is in our opinion the more interesting question of whether 201-d protects social media posts. Instead, the Court relied on the ministerial exception to rule that the employee’s conduct is not protected by the statute. What is the ministerial exception and how does it relate to Labor Law 201-d? Today’s employment law blog discusses.

Background: Blogging, Labor Law § 201-d, and Employment Termination

Jessie Sander was employed as a “Full Time Jewish Educator” at Westchester Reform Temple, a religious institution. Shortly after beginning her hire, she co-authored a blog post critical of Israel and Zionism — content unrelated to her official duties. Although she assured supervisory clergy that her personal views would not be shared in her workplace role, she was terminated less than a week after the conversation. Sander then sued the Temple, asserting that her dismissal violated New York Labor Law § 201-d(2)(c), which prohibits adverse employment actions against employees based on legal recreational activities conducted off-duty.

Under Section 201-d, employers may not punish employees for engaging in protected off-work activities, including legal recreational activities undertaken outside work hours. The statute defines “recreational activities” expansively to include lawful, leisure-time activities typically engaged in for enjoyment or relaxation.

Procedural History and Court of Appeals Review

In lower courts, the Supreme Court (trial level) and the Appellate Division agreed that Sander’s claim failed because the complaint alleged termination based on the content of her speech, not on the act of blogging—a legal recreational activity. The parties disputed whether blogging could even qualify as a protected recreational activity. The Appellate Division did not reach other defenses raised by the Temple.

On appeal to the New York Court of Appeals, the central questions were:

1. Does Labor Law § 201-d protect the act of blogging or blogging’s content when such content is unrelated to work?
2. Even if protected, are there legal defenses or exceptions that preclude an employment-related claim?

The Court accepted the appeal to address these issues, which touch on statutory interpretation and constitutional protections.

The Court’s Holding: Ministerial Exception Precludes the Claim

Rather than resolving whether blogging is a “recreational activity” under § 201-d, the Court affirmed the dismissal of Sander’s claim on constitutional grounds: the ministerial exception. Under this well-established doctrine, drawn from U.S. Supreme Court precedent (e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Our Lady of Guadalupe School v. Morrissey-Berru), anti-discrimination or employment laws generally do not apply to employment decisions involving “ministers” of a religious institution. This is rooted in the First Amendment’s protection of religious autonomy and the institutional right to select its own spiritual leaders.

Although Sander’s role might not have been titled “minister,” the Court concluded — as a matter of law — that her actual duties were religious in nature. Her job description, reflected in the offer letter and official documents, emphasized teaching religious programs, supporting religious activities such as Shabbat and confirmation programs, and fostering religious identity. These core functions aligned with guiding religious education rather than secular instruction. As a result, the Court held that the ministerial exception categorically barred her claim, regardless of how § 201-d might otherwise apply.

The Court explicitly reserved the question of whether blogging constitutes recreational activity under § 201-d for another case, making clear that this statutory question did not need resolution given the overriding constitutional defense.

Key Legal Lessons and Practical Implications

The Sander decision carries several important takeaways for lawyers, human resources professionals, and employers with religious affiliations:

1. Ministerial Exception Applies Broadly to Religious Workers

The Court reaffirmed that the ministerial exception reaches beyond traditional clergy titles. Even if an employee’s title is non-ministerial, their core job functions and responsibilities determine whether the exception applies. Here, the job’s emphasis on religious education and mission justified excluding statutory employment protections from application.

2. Statutory Protections for Off-Duty Conduct Have Limits

Labor Law § 201-d aims to protect employees’ lawful off-duty activities from employer retaliation. Yet this protection is not absolute. The Court’s decision shows that when constitutional protections — like the free exercise of religion — conflict with statutory claims, constitutional doctrine can preclude statutory recovery. Moreover, the decision leaves open future clarification of what constitutes protected “recreational activity,” especially with modern online conduct.

3. Documentation Is Critical in Defining Job Functions

Here, the offer letter was pivotal in establishing that Sander’s duties involved religious functions. For employers, clear job descriptions and documented expectations can be crucial when defending against statutory claims. For employees, understanding how job documents align with actual responsibilities can shape employment rights and remedies.

Moving Forward: Areas for Further Development

While Sander resolves one important constitutional question, it leaves several unresolved issues ripe for future litigation:

• Statutory Scope of § 201-d: Does blogging—particularly expressive online activity—qualify as a “recreational activity” protected under state law? The Court deferred this question, inviting future cases to tackle it.
• Recreational vs. Expressive Activities: As digital platforms and expressive conduct blur traditional categories of recreation, courts will need to refine this area of law.

Conclusion: The Court of Appeals’ decision in Sander v. Westchester Reform Temple reinforces the enduring strength of the ministerial exception when constitutional values intersect with statutory employment protections. For legal practitioners advising clients in employment or religious institutional contexts, this case underscores the necessity of a nuanced understanding of both statutory rights and constitutional limitations.

If you have questions about 201-d, lawful recreational activities, or the ministerial exception, contact one of our employment law attorneys. Famighetti & Weinick PLLC can be reached at (631) 352-0050 or in the Hudson Valley at (845) 669-0040.

The full Sander decision is available here. Our prior blogs about the ministerial exception and 201-d are also available by following by the links.

The following information is taken from the publicly available court orders issued in the case.

Persaud worked for the New York City Department of Finance (the DOF). He is of Guayanese national origin. In October 2020, a Guyanese newspaper published an article entitled “Gutter Work.” Boiled down to its essence, the article discussed the rise of oil jobs in Guyana and public debate about which workers in Guyana should have those jobs.

The newspaper shared the article on Facebook. A response to the post was generated from Persaud’s Facebook account, but Persaud alleged that his father, not he, posted the comment. The comment expressed a view about which workers should get the good oil jobs. Thus, as alleged by Persaud, he did not engage in any First Amendment activity, i.e. he did not engage in free speech activities.

After the post, the DOF allegedly received some complaints from the public about the post from Persaud’s account. This lead to investigations from two internal DOF agencies – the Department Advocate and the EEO. This, in turn, led to charges being brought against Persaud. The charges alleged that the Facebook comment violated the agency’s code of conduct and social media policy, and that Persaud did not participate in the investigation concerning the comment.

Ultimately, an administrative law judge held a hearing and upheld the charges. She recommended the penalty of termination, and Persaud was then terminated.

Two threshold issues immediately presented themselves in the case: (1) since Persaud did not say anything himself, but rather he alleged that his father made the speech, could Persaud maintain a First Amendment claim? (2) does the administrative law judge’s decision prohibit Persaud from bringing a lawsuit?

On the first question, in 2016, the U.S. Supreme Court issued a decision called Heffernan v. City of Peterson. The Heffernan case established “perceived” First Amendment cases. Basically, if a government actor believes that an individual has engaged in First Amendment speech, but the individual has not actually engaged in speech, then the individual could still have a First Amendment claim. Thus, under Heffernan, Persaud appeared to have a case of First Amendment retaliation.

But, did the ALJ’s decision bar a lawsuit? Because Persaud did not allege that he had a First Amendment claim in the course of the termination hearing, the ALJ did not have an opportunity to rule on the issue. So, the termination hearing should not bar a lawsuit.

Persaud tested these legal waters by filing his case in the Southern District of New York. Not surprisingly, the City immediately moved to dismiss the case arguing that (1) Persaud’s complaint did not show that the Defendants intended to punish him for the speech (lack of causation) and (2) that the ALJ’s decision barred the claims (legally, called collateral estoppel). Judge Vyskocil denied the motion, noting the Complaint had alleged sufficient facts to support the claims and that because Persaud did not allege First Amendment retaliation before the ALJ, his claims were not barred.

The case continued and the parties exchanged discovery and took depositions. At the end of discovery, the City against asked the Court to dismiss the case. Again, the City argued, among other things, that Persaud did not show that the Defendants had the requisite intent (called causation) and that, regardless, its interest in preserving a harmonious work environment outweighed the First Amendment value of the speech, and the Facebook post risked disrupting that harmony. Accordingly, the City argued had a right to terminate Persaud.

In a detailed, thoughtful, and lengthy decision, Judge Submaranian rejected all of the City’s arguments. First, as pointed out by F&W, the charges issued against Persaud recited the entirety of the Facebook post. When that happens, appellate courts rule that a plaintiff has produced direct evidence of retaliation. Judge Submaranian accepted the argument and held that Persaud did not have to produce any further evidence of retaliation (causation), even though he had done so in briefing.

Next, Defendants argued that they would have fired Persaud, even in the absence of the First Amendment speech. The Court resoundingly rejected this argument, as well, finding the City’s evidence in support to be “not exactly show-stopping,” consisting primarily of their own statements.

Finally, the Defendants argued that their interest in maintaining harmony between co-workers outweighed the First Amendment importance of the speech. Again, Judge Submaranian rejected the argument without reaching the question of the speech’s importance. Instead, he determined that the City had not shown, beyond dispute, that it had any interest in regulating the speech.

As an aside, Judge Submaranian’s decision also went into great detail about another tricky legal issue. There is no question that individual employees of a city or municipality may be held liable for constitutional violations. But, cities and other municipalities are not automatically liable for those individuals’ violations.

Instead, plaintiffs must generally show that a policy or custom of the city caused the constitutional violation (called Monell liability, after the Supreme Court case setting this standard). The intricacies of this legal quirk are beyond the scope of this blog, but Judge Submaranian detailed the development of the law in this area and ultimately held that because the individual defendants in Persaud’s case relied on the City’s social media policy to terminate Persaud, then the City could be liable.

In sum, F&W has defeated each of the City’s arguments made across two motions, and which were considered by two different judges. This unusual and challenging case survived all the City’s attempts to dismiss it. The case is now slated to go to trial before the fall.

If you have questions about First Amendment retaliation, based on perceived or actual First Amendment activity, contact a First Amendment lawyer at Famighetti & Weinick PLLC. Our office phone number is (631) 352-0050.

On February 15, 2024, New York’s highest court, the Court of Appeals, issued a decision which discusses how courts should evaluate employment retaliation cases. Today’s Long Island employment law blog discusses the decision in Clifton Park Apartments, LLC v. New York State Division of Human Rights. Spoiler alert: The decision is mostly favorable for employees.

The facts of the Clifton Park case are as follows. Leigh Renner worked for a company called CityVision. CityVision is a not-for-profit corporation which tests housing facilities for discriminatory practices. CityVision’s employees pose as prospective tenants and call housing facilities to seek to rent an apartment. One housing facility which Renner called, Pine Ridge, was owned by Clifton Park Apartments, LLC.

CityVision alleged that when Renner called Pine Ridge, it steered her to a different apartment complex. CityVision alleged that Pine Ridge did so, after discovering that Renner intended to move into the apartment with her children. This, CityVision alleged, constituted discrimination based on familial status. Accordingly, CityVision filed a charge of discrimination with the New York State Division of Human Rights, New York’s agency which investigates claims of employment and housing discrimination, among other things.

The Division investigated the claims, but concluded probable cause did not exist to support a finding of discrimination based on familial status. The Division dismissed the complaint.

After the dismissal, Pine Ridge’s lawyer sent a letter to CityVision and Renner. The letter accused CityVision and Renner of making false, fraudulent and libelous allegations in its Complaint to the Division. The letter further said, among other things, that Pine Ridge intended to look to CityVision and Renner for damages.

CityVision and Renner then filed another complaint with the Division alleging that Pine Ridge’s letter constituted retaliation for filing the first complaint. The charge led to a public hearing which is akin to a trial. An administrative law judge (“ALJ”) hears the evidence and testimony and decides whether there was in fact unlawful conduct.

At the hearing, evidence from CityVision showed that staff was shocked by the letter and that they diverted resources to find a lawyer. The ALJ made two decisions which are ultimately relevant to the Court of Appeals’ decision. First, the ALJ determined that the letter was retaliatory. Second, the ALJ required Pine Ridge to prove that the first charge of discrimination was made in bad faith. The ALJ concluded that Pine Ridge did not do so, and that CityVision had proven its retaliation case.

Pine Ridge sought to annul the Division’s decision and the Division cross-filed to enforce its determination. The case wound up in New York’s first level appeals courts, the Appellate Division.

The Appellate Division annulled the determination, making two critical findings. The Appellate Division determined that the Division had improperly required Pine Ridge, instead of CityVision, to prove the first element of a retaliation case – whether the complainant had a good faith belief that the respondent was engaging in discrimination.

But, the Appellate Division also ruled that “the mere sending of a letter” does not constitute an adverse action, meaning the action the respondent took was not severe enough to constitute unlawful conduct.

The case then wound up in the Court of Appeals. The first question is whether the letter is conduct which can lawfully constitute retaliation. For background, not every action which is taken by a defendant in a discrimination or retaliation case is unlawful, even if there is an unlawful motivation. The action must be an adverse action, as defined by law. If, for example, an employee complains to the employer about feeling discriminated at work based on race, then the employer moves the employee’s desk to a different area of the office because of the complaint, the action is probably not an adverse action as defined by law.

The definition of an adverse action varies between discrimination and retaliation cases. In retaliation cases, an adverse action is one which would dissuade a reasonable worker from making or supporting a charge of discrimination. This standard derives from a Supreme Court case known as Burlington Northern. The Court of Appeals noted that the heart of the Burlington Northern decision requires a retaliation plaintiff to show an injury or harm and that Burlington Northern applies to New York’s anti-retaliation provision.

Noting that New York’s discrimination laws require courts to interpret the law “liberally,” the Court of Appeals ruled that the Appellate Division should have not ruled that the letter is not adverse action as a matter of law. Rather, the court question is a fact-specific determination which must be determined by the trier of fact.

In this case, the ALJ determined that the letter was an adverse action. The Court of Appeals concluded that the ALJ’s decision was supported and rational. Specifically, the letter required CityVision to divert resources, thus the letter could have dissuaded a reasonable person from pursuing a claim of discrimination.

The Court of Appeals was also required to determine whether the first element of a retaliation claim was handled appropriately by the ALJ. The first element requires that a plaintiff’s complaint of discrimination be made in good faith. The ALJ required Pine Ridge to prove that the complaint was not made in good faith. But, precedent requires that the plaintiff (or complainant) not the defendant (or respondent) prove that it had a reasonable belief that the defendant engaged in unlawful discrimination. Thus, the ALJ improperly decided the first element.

Though the Clifton Park case is a housing discrimination case, its lessons are applicable to employment discrimination. Employees, employers, and practitioners in the area of employment law should take note of the Court of Appeals decision, paying close to attention to adverse action analysis.

Contact us at (631) 352-0050 if you have questions about unlawful retaliation.

Court of Appeals clarifies retaliatory adverse actions

To prove a discrimination or retaliation claim in court, an employee must prove, among other things, that he or she suffered an adverse action. At Famighetti & Weinick PLLC, we typically describe this requirement as having to show that the employer did something bad enough in the eyes of the law. One thing an employer may do to an employee in retaliation for an employee engaging in protected activity is to subject to the employee to a retaliatory hostile work environment.

In August 2023, the United States Court of Appeals for the Second Circuit issued an opinion clarifying the legal standard used to analyze retaliatory hostile work environment claims. Today’s Long Island employment law blog takes a look at the case Carr v. New York City Transit Authority.

Title VII prohibits workplace discrimination based on an employee’s protected characteristics such as race, religion, sex, gender, or national origin. It also prohibits employers from retaliating against employees who complain about or oppose activity which Title VII prohibits. Both claims require that an employee prove that an adverse action occurred.

To put it another way, courts often write that Title VII was not enacted to broadly implement a workplace civility code. Thus, not every slight or perceived wrong which an employee suffers may give rise to a workplace discrimination or retaliation claim — even if motivated by an animus towards the employee’s protected characteristic. Rather, courts generally require that the employee to have suffered a material change to the terms and conditions of employment. Clear cut examples include a termination or a demotion with loss of pay.

Under the discrimination law, employees may also claim that they suffered a hostile work environment. In interpreting Title VII, to prove a hostile work environment claim, courts require that employees show they faced unwelcome abusive conduct based on a protected characteristics. Notably, and as is relevant for this blog, employees must also show that the conduct was either severe of pervasive.

Under the retaliation law, employees can also show they suffered an adverse action by showing they faced a retaliatory hostile work environment. The concept of a retaliatory hostile work environment has been widely accepted by many courts. In New York, however, the legal analysis of such claims has not been settled. The Carr case changed that.

In Carr, the Second Circuit has to determine the appropriate standard to evaluate retaliatory hostile work environment claims. The trial court used a standard which mirrored the analysis for a discriminatory hostile work environment — the severe or pervasive standard.

On appeal, the Second Circuit detailed the history of the law concerning the definition of adverse action in the context of discrimination verse retaliation. The leading case concerning the distinction is Burlington Northern & Santa Fe Railway Company v. White, commonly referred to as just Burlington Northern. In Burlington Northern, the Supreme Court ruled that the harm an employee must show for retaliation, i.e. the adverse action, is a lower threshold showing than for a discrimination claim.

The key distinction drawn by Burlington Northern is that for retaliation, an employee need only show that the adverse action either in singularity or in the aggregate was materially adverse. The Supreme Court emphasized that this standard is broader than what an employee must show for purposes of a discrimination adverse action. Specifically, the Supreme Court ruled that a retaliatory adverse action is one which dissuade a reasonable employee from making or supporting a charge of discrimination.

Applying these principles to Carr, the Second Circuit ruled that since the harm for a retaliation claim is not the same for a discrimination claim, then the severe of pervasive analysis is not correct. Rather, to determine whether an employee has met the standard for a retaliatory hostile work environment claim, the employee must prove that the retaliatory actions taken were singularly or in the aggregate, materially adverse, meaning sufficient to dissuade a reasonable employee from making or supporting a charge of discrimination.

As employers become more sophisticated and knowledgeable about employment laws, they are more prone to conceal their retaliatory conduct in the form of ongoing lesser harms, instead of an obvious retaliatory action such as a termination. The Carr case is an employee-friendly case which makes it easier for employees to prove they suffered a retaliatory hostile work environment based on a series of lesser harms.

If you have questions about workplace retaliation, a retaliatory hostile work environment, or the Carr decision, contact a Long Island retaliation lawyer at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050.

Second Circuit Rejects Severe or Pervasive Standard for Retaliatory Hostile Work Environment Claim

In fact, New York’s whistleblower law is remarkably narrow. The New York employment lawyers at Famighetti & Weinick PLLC have previously blogged about the limitations of New York’s whisteblower statute, codified as New York Labor Law 740. But, on January 22, 2022, the law is set to expand. Today’s Long Island employment law blog explains the changes coming to New York’s whistleblower law.

Under the existing New York whistleblower law, workers in New York were protected against retaliation by employers when employees engaged in certain protected acts. To invoke the protections of the act, employees had to have disclosed an illegal activity of the employer. Further, it was not enough that the employer just engaged in unlawful activity. The violation must have threatened the health or safety of the public or constitute healthcare fraud. In other words, the law’s coverage was remarkably limited.

When the 2022 amendments take effect, the whistleblower law’s coverage will be greatly expanded. Among the changes coming, the law will protect both employees and independent contractors. Previously independent contractors were not covered.

In addition, the law more broadly defines the types of laws which employees can allege an employer is violating. The amendments clarify that executive orders, court decisions, and administrative agency decisions or rulings, are all within the definition of a “law, rule, or regulation.”

Under traditional understandings of the term retaliation, only certain employment actions were deemed retaliatory. For instance, terminations and demotions have clearly been legally recognized as retaliatory acts. But other acts, such as an employer speaking poorly about a former employee, may not have been recognized as retaliatory. Under the changes coming in 2022, the whistleblower expands the definition of retaliatory acts to prohibit employers from acting in ways which may harm a former employee’s prospects for future employment and from reporting an employee or his or her family to immigration officials.

Notably, a key change is that the activities that an employee may engage in to invoke the law’s protections has also been expanded. Employees will need only to make a good faith effort to advise their employer of a violation, before reporting the violation to a public body. Some exceptions apply to this requirement of first reporting to the employer, including, where the employee reasonably believes an imminent danger to the public exists, the employee thinks the employer will destroy evidence, or where the the employee believes the employer knows about the violation but will not correct it.

Other changes include that the statute of limitations has been increased from one year to two years. Also, whereas damages were limited in the previous version of the law, the changes make available punitive damages, front pay, and civil penalties of up to $10,000. Finally, employers must post notice of employees’ rights under the law.

Whisteblower protections in New York are one of the most commonly misunderstood areas of employment law. Prior to 2022, New York’s whistleblower law was notoriously limited in scope and covered only particular activities. The 2022 changes will expand New York’s whisteblower protections in important ways. Limitations remain though which why it is important to speak to an experienced employment law attorney if you believe your employer is violating a law.

The employment lawyers at Famighetti & Weinick PLLC are experienced in handling a variety of employment retaliation matters. Laws such as Title VII and the New York State Human Rights law also provide retaliation protection. If you are concerned about an employer violating a law or if you believe you have been retaliated against at work, speak to one of our retaliation lawyers at (631) 352-0050, or in the Hudson Valley at (845) 669-0040.

Changes coming to NY whistleblower law

The lawsuit alleges that the female volunteer firefighter is currently the only female in the department. Unlike her male counterparts, the female firefighter alleged that she was treated differently by being subject to unwarranted scrutiny over work on department committees. She further alleged that stipends and budgets under her control were cut to levels lower than males who had previously held her position.

After years of ongoing disparate treatment, the firefighter eventually brought her complaints to the department’s attention. After making the complaint, individuals in the department tried to oust her from her position as an officer of the department, and took other action allegedly in retaliation for her complaints. Ultimately, the fire department decided that her claims lacked merit, so she filed a charge of discrimination with the Equal Employment Opportunity Commission.

After an investigation, the EEOC determined reasonable cause existed to believe that the department had discriminated and retaliated against the firefighter in violation of Title VII. The EEOC later issued right to sue letter to the firefighter, allowing her to file her claims in federal court.

Accordingly, in November 2020, the firefighter filed her lawsuit against the fire department. In response, Defendants tried to have the case immediately dismissed. The department asked the court for permission to file a motion to dismiss. The department argued several reasons why the case should be dismissed, including that the statute of limitations bars the claims, that the conduct was not “severe or pervasive,” that the conduct was not directed at the firefighter based on her sex, and that the firefighter was not subject to a materially adverse employment action.

Famighetti & Weinick PLLC filed a detailed response to the fire department’s motion, on behalf of the firefighter. The firm cited to controlling legal authority showing why the claims were not barred by the statute of limitations. The firm further pointed out the reasons that the allegations were sufficient, including the fact the EEOC had already determined that the allegations were sufficient to support claims unlawful conduct under Title VII.

On March 3, 2021, federal District Judge Gary Brown heard oral argument on defendants’ motion. Employment lawyer Matt Weinick argued the case for the firefighter. After the department’s lawyers argued why dismissal should be granted, Weinick argued the firefighter’s case. Weinick emphasized the importance of the EEOC’s decision and the important role it should play in the court’s decision. Weinick also argued about the unique characteristics of Long Island volunteer fire departments, and why the conduct in this case amounted to a hostile work environment, discrimination, and retaliation.

Typically, the defendants’ motion is a preliminary matter and courts ask that the parties provide more substantive briefing after the court conference. In this case, Judge Brown ruled from the bench that he was considering the motion to dismiss fully made and argued, and that he would be denying the motion in its entirety. Thus, the case will not be dismissed, but instead, will be allowed to proceed to the next stages of the litigation process.

The judge recognized several points articulated by the firm’s arguments. First, volunteers, such as volunteer firefighters on Long Island, are considered employees for purposes of employment discrimination laws. But, the court’s decision also recognizes the importance of the continuing violation doctrine and it’s relationship to the 300 day filing rule for EEOC charges. The decision also shows the importance of a reasonable cause determination and it’s relevance to a court’s analysis about whether a discrimination lawsuit should be dismissed or not.

If you have questions about discrimination in fire departments, motions to dismiss, the EEOC, or retaliation, contact a Long Island employment lawyer at 631-352-0050. The phone number for our Hudson Valley employment law office is 845-669-0040.

Judge Rules Discrimination Case Against Fire Department Can Proceed

Hostile Work Environment Claims are Fact Intensive and Should Not Be Decided on Summary Judgment

Under federal law, a hostile work environment claim must show, among other things, that the employee was subjected to abusive and unwelcome conduct based on the employee’s membership in a protected class. Further, the conduct must be severe or pervasive such that it altered the terms and conditions of the employee’s employment. Notably, New York law expressly eliminates the severe or pervasive standard, so that showing is not necessary when suing under state law, but still must be met when suing in New York, but under federal law. The Rasmy decision addresses the requirements (1) conduct based on the employee’s protected class and (2) the terms and conditions of employment. These points are discussed below.

Courts Must Look at the Totality of the Circumstances

In Rasmy, the trial court dismissed the employee’s hostile work environment claim because the court determined that (a) conduct which was not directly targeting the employee could not support a hostile work environment and (b) other conduct which was not expressly discriminatory could not support a hostile work environment. The appellate court disagreed with both conclusions.

The Second Circuit reminded trial courts that when looking at hostile work environment claims, they must consider the totality of the circumstances. This means courts should not look at each discrete incident of offensive conduct, but rather must look at the effect of the totality of the conduct on the employee’s work environment.

In Rasmy, the trial court ruled that seemingly neutral acts – i.e. conduct not overtly discriminatory in nature – did not constitute discrimination. In Rasmy, those seemingly neutral incidents included the defendants calling Rasmy a “rat” and filing false complaints about him.

The Second Circuit disagreed with the analysis. Specifically, the Court held that when the same individuals engage in conduct which is overtly discriminatory, but also engage in some neutral abusive conduct, the entire “course of conduct” must be reviewed to analyze the hostile work environment claim.

Further, in Rasmy’s case, he alleged that he overheard discriminatory comments, but that some of these comments were directed specifically at him. The trial court ruled that such comments are stray remarks and not actionable because they were not directed at him. The Second Circuit disagreed and held that conduct “purposefully taking place” in the employee’s conduct can support a hostile work environment claim.

No Single Factor is Dispositive for Determining Hostile Work Environment Claims

The Rasmy trial court determined that although the employee could show pervasive treatment which was offensive, Rasmy could not show his conditions of employment were altered because he did allege he was physically threatened or he could not perform his job. The Second Circuit ruled that the holding “ignores” the reason Title VII prohibits hostile work environments.

To frame its analysis, the Second Circuit stated a reminder that for hostile work environment claims, courts must consider the conduct’s “overall severity and pervasiveness.” Further, the Circuit warned that this standard suggests disposition of such claims by a judge is generally not proper, meaning the issues should be decided by a jury.

In Rasmy’s case, the Court determined that the trial court did not credit several pieces of evidence suggesting Rasmy faced sufficiently severe of pervasive conduct, including, possibly being involved in a physical altercation, and that the harassment made him chronically nervous and he regularly cried.

In sum, the Second Circuit determined that Rasmy’s hostile work environment claim should have gone to a jury to decide, instead of being dismissed at summary judgment by a judge.

But-for Causation is not Applicable to Analyzing a Prima Facie Case of Retaliation

Retaliation claims use a familiar burden shifting analysis which requires a plaintiff to first establish a prima facie case of retaliation. The law is well settled that this is a minimal requirement. The prima facie case requires the plaintiff to show (1) she participated in a protected activity; (2) she was subjected to an adverse action; and (3) a causal connection exists between the protected activity and the adverse action. After the prima facie case, the employer can show that the adverse action was taken for legitimate, non-retaliatory purposes. Then, the employee must show the business reason is pre-text.

In Rasmy, the trial court never reached the burden shifting part of the analysis because it determined that Rasmy did not meet the third element of causation.

A few years ago, the Supreme Court issued a decision (Nassar) which alters the standard for determining causation in Title VII retaliation cases. Previously, courts used a more lenient “motivating factor” standard. After Nassar, courts were required to use a more rigorous “but-for” standard.

In Rasmy, the trial court used the but-for standard to determine whether the employee satisfied the prima facie showing of causation. The Second Circuit cautioned that but-for causation does not apply to the prima facie case. Rather, but-for causation is employed at the pre-text stage.

Moreover, the Second Circuit determined that 5 months elapsing between protected activity and an adverse action can support an inference of retaliation and guided courts to look at factors such as organization and size of the employer, the existence of layers of decision making, and nature of the employer’s claims, to determine whether temporal proximity evidence can support an inference of retaliation.

Finally, the Second Circuit again noted that questions concerning an employer’s motivations are more appropriately decided by a jury, not a judge.

In sum, Rasmy is an amazing case for employees. It puts to rest many arguments raised by employers when defending discrimination and retaliation cases and emphasizes once again to trial courts that their role is limited on summary judgment and that discrimination and retaliation cases are usually more appropriately decided by a jury.

If you have questions about hostile work environment standards, retaliation claims, or the Rasmy decision, contact a Long Island employment lawyer at 631-352-0050. We have more information about discrimination and retaliation cases available on our website at http://linycempoymentlaw.com.

Court issues employee friendly decision

Before an employee may sue an employer for discrimination or retaliation (arising under federal law) employees must file a charge of discrimination with the EEOC. In January 2020, the EEOC published data reporting the number of charges filed across the United States and its territories in 2019. The publication shows the number of filings broken down by state and type of charge, and percentage of charges as a total of all filings and as a percentage of all filings within the state. Today’s Long Island employment law blog discusses the EEOC’s report.

New York saw a total of 3,220 EEOC charge filings (or 4.40% of all charges filed in the United States). This shows a continued a downward trend of EEOC charges in New York. As pictured in the graph below, in 2016, New York saw 3,740 total EEOC filings which steadily decreased to 3,220 last year.

Yearly New York EEOC filings

The breakdown of charge types is not surprising to those who regularly handle employment discrimination matters. The filings included 1,841 claims of retaliation. In other words, 57.20% of all filings were related to retaliation. This is not surprising because discrimination claims are often associated with retaliation. Indeed, the percentages reported in the EEOC report exceed 100% because EEOC charges frequently allege more than one type of charge, such as age discrimination and retaliation.

Frequently, an employee may believe he or she was subjected to discrimination in the workplace and reports it to the employer. Through the eyes of the law, the employee may not have, in fact, faced discrimination, but if the employee had a good faith basis to believe he or she was reporting unlawful discrimination, the report is protected. If the employer retaliates against the employee, the retaliation is still unlawful, even though the underlying conduct may not have been unlawful discrimination. This is why it is so important for employers to train management and employees about discrimination and retaliation laws.

After retaliation charges, several types of discrimination lead the way. Sex discrimination and disability discrimination rank at the top. Sex discrimination filings represent 37.50% of EEOC charges and disability discrimination charges represent 31.30% of filings. Again, these statistics are not surprising. Sex discrimination continues to be prevalent in New York’s workplaces, even with the extensive publicizing of the epidemic through the #metoo movement and the government’s push for education. In fact, in 2019, New York required all employers to train their workforces about sex discrimination.

Close behind sex discrimination charges is disability discrimination charges. At 31.30%, disability discrimination charges are likely prevalent because of how easy it is for employers to find trouble. Disability discrimination can take many forms such as failure to accommodate, hostile work environment, and adverse actions taken against employees who miss work because of a disability, take leave, or otherwise try to exercise rights protected by the Americans with Disabilities Act.

Not far behind sex and disability discrimination comes race and age discrimination charges. Race discrimination charges comprise 27.40% of all New York EEOC charges and age discrimination claims reached 19.60% of all charges. The complete breakdown of charge types filed in New York is illustrated in the below graph.

Types of EEOC Charges Filed in New York 2019

Nationally, total EEOC filings dipped to their lowest levels in 22 years. In fiscal year 2011, filings peaked at 99,947. Since then, filings have trended down, reaching a total low of 72,675 last year. The trend can likely be attributed to better education, training, and enforcement. Thus, there are indications that the work towards workplace equality is effective. But, the statistics do not tell the entire story.

National EEOC Filings By Year

Many states, such as New York, maintain their own workplace discrimination laws. In New York, the Human Rights Law allows victims of workplace discrimination and retaliation to file claims directly in court or in the New York equivalent of the EEOC, the New York State Division of Human Rights. So, the EEOC’s statistics do not reflect whether there is an increase in state filings. In other words, federal filings may be trending down, while state filings are trending up. Indeed, many states’ laws, including New York’s, are broader and more employee friendly, than federal counterparts, inducing victims to file in state forums instead of the EEOC.

Which state leads the nation with EEOC filings? The results may be surprising. The answer is . . . Texas, and by a wide margin. Texas saw 7,448 EEOC filings in 2019 or 10.2% of all the filings in all the states and territories. The next closest state is Florida with 5,990 filings, or 8.2% of all filings. These results may reflect the growing diversity of these states.

In sum, some national and New York trends reflected by the EEOC’s statistics suggest a decrease in reported workplace discrimination in 2019. When New York reports about its filings in the New York State Division of Human Rights, we’ll have a better picture about what’s happening in New York, specifically. We remain encouraged that the trends show an increased attention to workplace discrimination and better education throughout the country. But, the numbers also reflect the need to do more.

If you have questions about workplace discrimination or retaliation, contact a Long Island employment lawyer at 631-352-0050. Our website is at http://linycemploymentlaw.com.

In Natofsky v. City of New York, the plaintiff alleged disability discrimination and retaliation against the City of New York. He brought his claims under the Rehabilitation Act. The trial court applied a standard requiring the plaintiff to show that discrimination was the “sole” reason that the employer took a adverse actions against him. Applying this standard, the trial court dismissed the employee’s claims, then the employee appealed.

On appeal, the Second Circuit first looked at whether the employee was required to show that discrimination was the sole reason for the acts taken against him. The court determined that the Rehabilitation Act incorporates the standards from the Americans with Disabilities Act (ADA). So, although the Rehabilitation Act indeed uses language indicating discrimination must be the sole reason, subsequent amendments to the Act made clear that courts were to look to the ADA for the appropriate standard.

Turning to the ADA, the Second Circuit has to determine the appropriate analysis called for by the statute. The court noted that in the past, courts in New York have used a mixed-motive analysis in reviewing disability discrimination claims. In mixed-motives cases, plaintiffs can show discrimination was a motivating factor in the employer’s decision to take action against the employee.

The appellate court held that but-for causation is the necessary standard to be applied in disability discrimination cases. In reaching the decision, the court relied on Supreme Court decisions in Gross and Nassar which held that statutes such as the ADEA which use “because of” language require but-for causation. Although Title VII uses similar language, Congress amended Title VII to use a mixed-motive test. Because Congress did not amend the ADA, the court was persuaded that but-for is the appropriate test.

In sum, the Second Circuit has raised the bar for employees to prove disability discrimination claims in New York. The court has made clear that mixed-motives analysis is not the appropriate standard in disability discrimination claims. Instead of showing discrimination was a motivating factor in the employment decision, victims of workplace disability discrimination must show that discrimination was the but-for reason for the adverse employment action.

Although there is no doubt that the decision is a set back for employees’ rights, there are some bright points in the decision. First, but-for does not mean that discrimination must be the sole reason. This opinion is consistent with directions from the Supreme Court.

But also, Judge Chin dissented. The dissent sets forth a blue print for employee advocates to argue to the Supreme Court why mixed-motives is appropriate, instead of but-for. Moreover, that the Second Circuit’s decision was not unanimous, shows that the decision was not clear cut which may provide hope to employees that enough Supreme Court justices can be persuaded to reject applying but-for analysis to disability discrimination.

Finally, because the decision is an interpretation of federal law, there may be some question as to whether the but-for standard applies to disability claims brought under the New York State or New York City Human Rights Laws. In particular, the New York City Human Rights Law is designed to be interpreted liberally and expansively, so it is doubtful courts will apply a heightened standard to those claims.

Unfortunately, the Natofsky case is a set back for employee rights and disability discrimination claims. Employee advocates should watch the law develop as the issue may be brought to the Supreme Court.

If you have questions about disability discrimination, the ADA, the Rehabilitation Act, or other employment discrimination laws, contact a Long Island disability discrimination lawyer at Famighetti & Weinick, PLLC at 631-352-0050. Our website is http://linycemploymentlaw.com.

Heightened standard in disability discrimination cases

For an employee to have a hostile work environment claim against an employer, the employee must be able to show the employer’s abusive conduct was either severe or pervasive. When showing pervasive conduct, the employee must show many hostile and abusive acts took place frequently over a period of time. But, employees must file charges of discrimination within 300 days of the discriminator act.

In Davis-Garett v. Urban Outfitters and Anthropologie, the plaintiff alleged she was subjected to a hostile work environment at three different store locations and over the course of more than a year, ending in September 2013. But, the plaintiff did not file a charge of discrimination with the EEOC until December 2013. The trial court ruled that the everything that happened from before 300 days before the EEOC charge was filed, would not be considered.

On appeal, the Second Circuit Court of Appeals held that, based on Supreme Court precedent, if at least one hostile act takes place within the 300 day period, then other acts which happened outside the 300 days remains actionable, meaning an employee can sue based on that conduct. Further, the Second Circuit emphasized that acts from outside the limitations period can also be used as background evidence to support a timely claim. Based on these holdings, the appellate court ruled that all of the conduct which plaintiff alleged constituted a hostile work environment was timely for statute of limitations purposes.

The Court next looked at retaliation claims. The Second Circuit re-affirmed the principle that adverse employment actions for retaliation claims are different from retaliation claims. For discrimination claims, adverse employment actions must be a change in the terms and conditions of employment, such as a termination, demotion, or decrease in salary. For retaliation claims, however, the Supreme Court’s standard is lower. For retaliation, adverse employment actions consist of an act which is materially adverse such that it would dissuade a reasonable worker from making a discrimination claim.

The Court made one other observation in the decision concerning the standard for summary judgment motions. Typically at the end of discovery for an employment lawsuit, a defendant will make a motion for summary judgment. In a summary judgment motion, the defendant basically asks the judge to dismiss the case because the plaintiff’s evidence cannot establish discrimination or retaliation. For these types of motions, courts must view the evidence in a favorable light for the employee. In plain English, if the employer and employee provide contradicting evidence, the court must believe the employee’s evidence.

In Davis-Garett, the Second Circuit hammered home the point that courts cannot make credibility determinations so the trial court was compelled to believe the employee’s sworn statements about what happened to her. Moreover, for hostile work environment claims, trial courts must review the workplace conditions in totality and not piecemeal. Further, when viewing comments in the context of the workplace as a whole, some comments which may appear neutral and non-discriminatory, may then be viewed as discriminatory, such as neutral seeming comments.

In sum, in Davis-Garett, the Second Circuit Court of Appeals decided three important issues concerning workplace discrimination and retaliation claims in New York. First, acts which happened outside the 300 day statute of limitations period can be used to support a hostile work environment claim and can also be used as evidence of discrimination. Second, adverse actions for retaliation claims have a lower standard than adverse actions for discrimination claims. Third, when reviewing summary judgment motions in employment cases, trial courts must credit the employee’s evidence and view that evidence in its totality and not piecemeal.

If you have questions about the statute of limitations for employment discrimination cases, adverse employment actions, hostile work environments, or summary judgment, contact a Long Island employment discrimination and retaliation lawyer at Famighetti & Weinick, PLLC. Our website is http://linycemploymentlaw.com and our phone number is 631-352-0050.

Statute of limitations in employment cases

In Parker v. Reema Consulting Services, the plaintiff was initially hired to a low level warehouse position with the company. But, in the course of two years, the plaintiff, a female, was promoted several times, eventually to an assistant manager position. Within weeks of this promotion, male employees began circulating rumors that the plaintiff had a sexual relationship with a high ranking manager, and that she entered into the relationship for the purpose of obtaining the promotions. The rumors started from a male employee who was jealous about the plaintiff’s quick rise to her position.

The plaintiff met with the highest ranking manager at her location to discuss the matter. At the meeting, the manager blamed the plaintiff for “bringing the situation into the workplace,” and warned her that he could not recommend her for any further promotions because of the rumor. He specifically stated she would not progress any higher in the company because of the rumor.

A few days later, the plaintiff and the manager met again. At this meeting, the manager blamed the plaintiff for the rumors and threatened that he could have fired her for “huffing and puffing about this BS rumor.” The manager allegedly lost his temper at the meeting.

Afterwards, the plaintiff made a sexual harassment complaint against the manager and co-worker. Her co-worker who started the rumor, also made a complaint against the plaintiff.

Ultimately, human resources and management met with the plaintiff. They issued her two written warnings, then terminated her based on insubordination to the manager, and based on the co-worker’s complaint against her.

Parker filed a lawsuit in the United States District Court for the District of Maryland. The District Court, however, did not believe that these circumstances constituted unlawful sex discrimination or retaliation under Title VII because the allegations related to her conduct, not her sex or gender.

On appeal, the Fourth Circuit disagreed. The appellate court determined that the rumor was started because the co-worker was jealous that the plaintiff “used her womanhood” to “seduce” a promotion. The Court was concerned that this allegation implicates a “deeply rooted perception” that women use sex for promotions. Thus, the rumor was a sex based stereotype and so it was illegal under Title VII. Indeed, in a concurring opinion, one judge wrote that this conduct shows that the plaintiff was “treated with less dignity because she is a woman.”

Moreover, the Circuit Court determined that the conduct satisfied Title VII’s requirement that the offensive conduct be severe or pervasive. The Court found that the conduct preoccupied the plaintiff and management from the time of her last promotion, until her termination, and that management participated in the harassment. Moreover, the harassment was humiliating and interfered with the plaintiff’s work. Accordingly, the plaintiff adequately showed a hostile work environment.

Finally, the Court determined that the plaintiff adequately showed retaliation. Because the harassment she faced was unlawful, when she complained about it, her complaint was protected under the law and the company could not have taken action against her for making the complaint.

At Famighetti & Weinick PLLC, we often hear from potential clients about similar circumstances concerning false rumors about co-workers having sex with managers. If you are a victim of a workplace rumor, if you have questions about sexual harassment or a hostile work environment, or if you have questions about the Parker decision, contact one of our employment lawyers at 631-352-0050 or visit our website at http://linycemploymentlaw.com.

sex rumors in the workplace

Close family relationships enjoy constitutional protections. In fact, courts have determined that two amendments protect individuals’ rights to enter into and enjoy close personal relationships. The First Amendment was determined to protect close family relationships in 1999 by the Second Circuit Court of Appeals in New York. The First Amendment prohibits the government from intruding into a familial relationship as retaliation for one family member’s exercise of free speech rights.

The relationship at issue must be very close. For instance, a husband and wife, parent and child, and brother and sister (or other siblings), have all been determined to be close enough so as to constitute a constitutionally protected familial relationship. Two longtime childhood friends, however, are not constitutionally protected as an intimate association, even if those friends consider themselves so close as to constitute a de facto family.

First Amendment intimate association claims are frequently brought in the context of employment cases where two employees are married or are otherwise closely related, and also work for the same government employer. For example, if a husband and wife both work for the same police department and the husband exercises free speech rights in the workplace (meaning the husband has spoken as a citizen on a matter of public concern), then the employer violates the First Amendment if it took an adverse employment action against the wife in order to retaliate against the husband.

The First Amendment is not the only amendment which provides protection for intimate associations. The Fourteenth Amendment also protects close familial relationships under its substantive due process provisions. Like the First Amendment, the Fourteenth Amendment similarly protects only close family relationships such as husband and wife, parents-children, and siblings. It has long been settled that the conduct at issue must be shocking, arbitrary, and egregious. This high standard meant that only the worst and intentional government conduct would give rise to an intimate association claim.

But, an open question in New York was whether the government’s action must be intended to target the familial relationship, or whether the interference could be incidental. In Gorman v. Rensselaer County, New York’s federal appellate court, the Second Circuit Court of Appeals, settled the question. The Second Circuit held that the government’s conduct must indeed intentionally interfere with the relationship at issue. The decision relied on other cases noting that due process is implicated only by deliberate decisions of government officials. The circuit emphasized that indirect and incidental conduct cannot give rise to a due process intimate association claim. First Amendment intimate association claims, however, continue to be analyzed the same and do not require a showing of intentional interference.

In sum, the United States Constitution protects close and intimate associations among family members. The government cannot arbitrarily and intentionally interfere with protected familial relationships nor can the government retaliate against one family member for another family member’s engaging in protected First Amendment activity. But, the bar has been raised for intimate association claims under the Fourteenth Amendment.

The constitution is not the only law which protects relationships, particularly in the employment context. Title VII and other anti-discrimination laws, have been held to protect zones of interest, meaning that an employer can discriminate or retaliate against an individual by taking action against another employee who is sufficiently close to the employee. Again, a common example would be retaliating against a husband because the wife complained about unlawful discrimination. State laws also explicitly prohibit workplace discrimination based on familial status.

If you have questions about intimate association claims, the First Amendment, the Fourteenth Amendment, or the Gorman case, contact a Long Island civil rights lawyer or employment lawyer at Famighetti & Weinick PLLC at 631-352-0050.

Intimate Association claims

The age discrimination and retaliation case was brought on behalf of one of the bank’s traders. According to the allegations in the case, the trader had been successfully working on Wall Street for decades. Then, co-workers and supervisors began subjecting the trader to a hostile work environment based on his age. The abusive conduct consisted of age based jokes and comments, some of which were documented in e-mails. The complaint filed with the New York State Division of Human Rights detailed other improper hostile workplace conduct directed at the trader based on his age.

Further, the trader complained about the age discrimination on multiple occasions, also at times in writing. Despite these complaints, the hostile work environment continued. The trader opposed other unlawful discriminatory conduct in the workplace and after one such time, a supervisor threatened to run the trader out of the company. Indeed, soon after these complaints, the bank issued a poor performance evaluation to the trader and removed from him many of his top accounts. The complaint alleged that the reasons the bank gave the trader for removing the accounts were demonstrably untrue. Ultimately, the bank terminated the trader’s employment.

On the trader’s behalf, the employment lawyers at Famighetti & Weinick PLLC filed a complaint with the New York State Division of Human Rights. The Division is responsible for investigating claims of workplace discrimination and retaliation. The complaint alleged that the investment bank engaged in unlawful age discrimination by subjecting the trader to a hostile work environment and terminating him under circumstances which infer age discrimination. Further, the complaint alleged that the bank retaliated against the trader for making his complaints of age discrimination and for opposing other unlawful behavior in the workplace.

The New York State Division of Human Rights investigated the claims over the course of several months, including interviewing the trader. Famighetti & Weinick PLLC submitted evidence and a detailed statement arguing the legal basis for finding that the bank engaged in discrimination and retaliation.

The Division then issued a decision determining that probable cause exists to support the allegations of the complaint. Next, the Division will schedule a public hearing which is the equivalent of a trial. At the public hearing, Famighetti & Weinick PLLC’s employment lawyers will present evidence to prove the discrimination, retaliation, and damages, and an administrative law judge will decide the case.

The Long Island age discrimination lawyers at Famighetti & Weinick PLLC are experienced in prosecuting claims of age discrimination and retaliation at the New York State Division of Human Rights, at the EEOC, and in state and federal courts. Our employment lawyers help employees through the process of filing a complaint with the State Division, through the investigation process, and at a trial or public hearing.

For more information about age discrimination, retaliation, public hearings, or the New York State Division of Human Rights, contact one of our Long Island employment attorneys at 631-352-0050. We are available on the internet at http://linycemploymentlaw.com.

Probable cause determined in age discrimination case

The Constitution has limits. The First Amendment is not unlimited and neither is the Fourth Amendment. For instance, the Fourth Amendment places limits on a police officer’s arrest power. Specifically, the Fourth Amendment requires police officers to have probable cause before making an arrest, meaning a reasonable belief that a crime has been committed. Otherwise, the arrest is unlawful. Establishing probable cause, however, is easy and police officers are given a significant amount of discretion and deference when it comes to arrests.

On June 18, 2018 in Lozman v. Riviera Beach, the question before the U.S. Supreme Court was whether the existence of probable cause prevented an individual from suing for retaliatory arrest.

Lozman was an outspoken Florida resident who often opposed and criticized his city council’s policies, practices, and laws. The city first encountered Lozman when he criticized the city’s new law affecting his boat home resulting in him filing a lawsuit against the city.

At issue in Lozman’s current case was an incident that occurred in 2006, during his attendance at a public city council meeting, when Lozman criticized the city’s alleged corrupt practices.

A city councilmember frustrated with Lozman’s comment, requested that he step off the podium and stop talking, but Lozman refused. Video taken of the incident shows Lozman standing at the podium for about 15 seconds and talking in a calm voice, when suddenly, a council member ordered a police officer to “carry [Lozman] out.” A police officer complied with the council member’s request, placed Lozman in handcuffs, and escorted him out of the public city council meeting.

Lozman was subsequently charged with disorderly conduct and resisting arrest without violence. The prosecution ultimately dropped the charges against him. Shortly thereafter, Lozman, again, sued the city. In this suit, Lozman conceded that probable cause existed for his arrest, but he argued that it was something else that actually caused his arrest.

Lozman argued that the city was fed up with him due to his prior lawsuit, constant criticism, and his conversations at public city meetings regarding the city’s corrupt practices. Thus, Lozman argued that the council member wrongfully and arbitrarily requested the officer to arrest him just to silence him. Further, Lozman argued that this was often done by the City and was therefore the city’s “official municipal policy” that led to his arrest. Thus, according to Lozman, it was not the police officer that Lozman accused of wrongdoing, but the city council member.

The issue before the Supreme Court was whether Lozman’s arrest violated the First Amendment because the arrest was made in retaliation for his earlier protected speech. Writing for the majority of the Court, Justice Kennedy noted that engaging in political speech is “one of the most precious of the liberties safeguarded by the Bill of Rights.” The Court concluded that whether or not probable cause existed did not matter and Lozman did not have to prove the absence of probable cause. Where, as here, a plaintiff could show sufficient evidence that the arrest was caused by a “substantial or motivating factor” to retaliate, the defendant could win only by showing that the arrest would have still occurred, regardless of whether or not it was motivated by a retaliatory animus.

The Long Island First Amendment lawyers of Famighetti & Weinick PLLC are available to discuss free speech cases including retaliatory arrest lawsuits, free speech retaliation, and other First Amendment violations. Contact a Long Island civil rights lawyer at 631-352-0050 or visit us on the web at http://linycemploymentlaw.com.

Today’s Long Island civil rights blog was written by law clerk and Hofstra law school student Thalia Olaya.

First Amendment retaliatory arrest

Before even getting to the question of damages, plaintiffs must always first prove liability. This means that an employment discrimination plaintiff must first prove that the employer in fact engaged in unlawful discrimination or retaliation. We often describe this step by analogizing it to baking. In a lawsuit, a plaintiff must prove certain elements. Elements are like ingredients. If, for example, we were baking a cake, we need, for simplicity purposes, four ingredients: (1) flour, (2) sugar, (3) butter, and (4) eggs. If we did not have one of these ingredients, we may make something resembling a cake, but it would not be a cake.

Similarly, in the world of employment discrimination, a plaintiff must prove four “elements” or “ingredients” to win the liability part of his or her lawsuit. In short, those elements are: (1) membership in a protected class (such as race, religion, disability, etc.), (2) being qualified for the job; (3) an adverse action (meaning something legally “bad” happened such as being fired); and (4) causation – a showing that the bad thing happened because the employee belongs to a protected class. If the plaintiff does not prove one of these elements, then the “cake” won’t reason, i.e. the plaintiff cannot prove the case and will not be entitled to any damages whatsoever.

Once a plaintiff proves his case by meeting each one of the elements, the plaintiff can prove damages. Victims of employment discrimination in New York can, generally, recover four different types of damages: (1) economic damages; (2) emotional damages; (3) punitive damages; and (4) attorneys’ fees and costs. Each of these damages are described below.

Economic damages include all out of pocket costs incurred by the discrimination victim because of the employee’s unlawful conduct. Examples include loss of pay, loss of pension or retirement payments, and health insurance costs. Victims are typically entitled to interest on awards of economic damages. The damages, however, typically are awarded only for back-pay which is damages calculated from the time of the discrimination until the time of the award. Courts are reluctant to award front pay, or future damages. In other words, a victim who is unlawfully terminated in 2016 and receives a favorable jury verdict in 2018 can receive back pay from 2016 to 2018, but usually not front pay from 2018 to some other point in the future. In addition, victims must try to mitigate damages by looking for new work.

Emotional damages are the hardest category of damages to quantify. But, emotional damages are generally considered either garden variety or more severe. Garden variety emotional damages fall on the lower end of the spectrum of awards and typically will not exceed $50,000. Garden variety damages may be awarded where a plaintiff does not have medical corroboration for her symptoms or where the plaintiff testifies about vague and general symptoms of emotional distress. Higher awards of $200,000 may be appropriate where a plaintiff testifies about significant emotional distress such as changes in eating and sleeping behavior, withdrawing from socializing, hair loss, and other extreme symptoms. If a medical professional testifies about those symptoms, the awards may exceed $200,000 and can reach into the millions, but only with evidence of the most extreme mental distress.

Punitive damages are designed to punish defendants who acted recklessly or wantonly. They are also used to deter others from acting in a similar manner. Punitive damages, if awarded, must be relative to the other damage awards. For instance, a court will not likely uphold a punitive damage award of $10,000,000 where the plaintiff was able to prove only $10,000 in other damages.

Prevailing plaintiffs in employment discrimination lawsuits are also able to recover attorneys fees and costs. At the conclusion of an employment discrimination lawsuit, the attorney can submit time records to the court and ask the judge to order the defendants to pay for the attorneys’ time on the case. Costs may be also be imposed against the employer, including the costs for filing the lawsuit and the costs for deposition transcripts.

The damages available to victims of discrimination can be confusing. Damages are highly fact specific and each case must be reviewed individually to determine the amount of each category of available damages. To determine how much your employment discrimination case may be worth, contact a Long Island employment lawyer at Famighetti & Weinick PLLC at 631-352-0050 or http://linycemploymentlaw.com.

Damages in an Employment Discrimination Lawsuit

To successfully establish a retaliation case, the employee has to show that the negative employment action he or she suffered was “adverse” and that it occurred as a result of the employee complaining about the discrimination.

Technically, courts have ruled that an action is “adverse” when a reasonable employee would be hesitant or dissuaded from filing a discrimination complaint fearing that the same negative consequences would occur to them.

In practice, however, the actual meaning of “adverse” remains unclear. In fact, what action a court deems sufficiently “adverse” may surprise you. For example, in 2017, in Bien-Aime v. Equity Residential, a federal district court in New York decided that not saying good morning to an employee and speaking without a “warm welcome in his voice” were considered adverse actions.

Today’s employment law blog discusses a recent retaliation case, Duplan v. City of New York, decided by New York’s federal appellate court on April 30, 2018. Although this case did not clarify the meaning of “adverse,” it did change other parts of the legal landscape for retaliation cases in New York. Below are the facts of the case.

Duplan, a gay black male from Haiti, worked as the Director of Operations in the City’s HIV/AIDS Prevention and Control Bureau. Alleging that he was subjected to employment discrimination on the basis of his race, national origin, and sexual orientation, Duplan filed a discrimination lawsuit under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 USC Section 1981, and further alleged violations of his Constitutional rights via 42 USC Section 1983.

In the lawsuit, Duplan also alleged that his supervisors retaliated against him after he filed discrimination charges, in 2011 and 2014, with the Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of Human Rights (“NYSDHR”). Specifically, some of his allegations were that his supervisors took away some of his job responsibilities, ostracized him, and repetitively denied him from promotions that he was otherwise qualified to receive.

The district court dismissed Duplan’s retaliation case because the court did not believe that Duplan proved an essential element of a retaliation case – causation. The causation element of a retaliation case requires a plaintiff to prove that the employer took action against the employee because of the employee’s complaint of discrimination. Duplan appealed his case to New York’s federal circuit court.

On appeal, the Second Circuit Court of Appeals agreed with most of the lower court’s decision, except for the retaliation portion. On appeal, the Second Circuit determined that sufficient evidence in the record supported the causation element. The court held that collectively, Duplan’s supervisors had “persistently discouraged him” and were slowly but surely trying to get rid of him which the court labeled as a “drumbeat of retaliatory animus.” These actions showed that his supervisors maintained a retaliatory animus against Duplan.

Additionally, the court also decided this was the chance to clarify two other parts of the law concerning retaliation.

First, the Second Circuit joined with several of its sister courts and held that discrimination claims under Section 1981 were off limits to government employees. This effectively leaves government employees with the option of bringing claims under only Title VII or Section 1983.

Next, the court discussed Title VII’s exhaustion requirements. Exhausting a claim is a pre-requisite to filing a discrimination claim under Title VII in court. Employees are generally required to first file a charge of discrimination with an administrative agency such as the EEOC within specific time limits, generally 300 days from the time of the discrimination or retaliation.

Prior to the Duplan decision, reasonably related claims were considered automatic exceptions to the exhaustion requirement. The Duplan decision, however, changed this after holding that reasonably related claims were an exception only if they occurred during the time that the EEOC was investigating the case or if the suit had been timely filed.

This new rule created an issue for Duplan’s retaliation claims that allegedly occurred prior to December 27, 2013, because he had not followed the timeliness requirements. For example, in 2011, he ignored the 90-day time limit to file a lawsuit which employees must comply with after receiving a right sue letter from the EEOC.

After the decision in Duplan, it is important that employees file their claims correctly and adhere to the time limitations. Otherwise, a court may later dismiss a claim.

The Long Island employment lawyers at Famighetti & Weinick PLLC can help you decide what agency it may be better to file a discrimination or retaliation case with, help you understand important time and filing requirements, and other important considerations that may be the key to a successful lawsuit.

Contact a Long Island employment lawyer at Famighetti & Weinick at 631-352-0050 for a free consultation. Our website is https://www.linycemploymentlaw.com/.

Today’s employment law blog was written by law clerk Thalia Olaya.

On July 27, 2017, New York’s Federal appellate court decided a case which discusses a qui tam action and the retaliation provision of the False Claims Act.

The first issue in Fabula v. American Medical Response, Inc., was whether the plaintiff’s complaint satisfied the particularity standard.

In the Fabula case, Fabula worked as an Emergency Medical Technician (“EMT”) for AMR (“American Medical Response, Inc.”). AMR is the largest ambulance company in the United States. AMR can be reimbursed by Medicare and/or Medicaid depending on the reasons for transporting the patient. Fabula was fired after he refused to falsify a Patient Care Report (“PCR”) so that it could qualify for Medicare reimbursement. There was also a history of other EMTs and paramedics being forced to falsify documents so that AMR could be reimbursed. For these reasons, this qui tam action alleged that AMR defrauded the government by submitting false claims for Medicare and Medicaid reimbursement.

Filing a Qui Tam Lawsuit

To start a lawsuit, the plaintiff must file a complaint with the court. The complaint is a document which states the facts that the plaintiff alleges occurred and that make the defendant liable to the plaintiff. In a federal lawsuit alleging fraud, there is a heightened pleading standard. In other words, the plaintiff must state with particularity the facts that occurred which caused the fraudulent action. If not, the complaint will likely be dismissed.

The lower court, ruled that the complaint in the Fabula case did not satisfy the particularity standard because the complaint did not state, among other things, details about invoice numbers and invoice dates. The Second Circuit disagreed and declined to require that every qui tam complaint needed to state the false invoices that were submitted to the government. Instead, the particularity standard can be satisfied as long as the facts alleged in the complaint create a strong inference that false claims were submitted to the government and that the other party “peculiarly” has the specific information needed to identify the false claims.

Whistleblower Qui Tam Retaliation

The second issue in the Fabula case was whether Fabula was fired in retaliation for refusing to falsify a document.

The lower court ruled that Fabula’s refusal to falsify the document was not considered “protected activity,” which is one of the requirements for a retaliation claim. The Second Circuit, however, again disagreed with the lower court and ruled that Fabula’s refusal to falsify the document was considered “protected activity” because his refusal made it difficult, or even impossible, for AMR to file a false claim and be reimbursed for that particular ambulance run. Thus, Fabula satisfied the retaliation requirement under the False Claims Act because he prevented or stopped at least one False Claims Act violation and as a result, was fired.

In sum, qui tam actions and determining whether an employer retaliated against an employee under the False Claims Act can be complicated.

Long Island Retaliation Lawyers

If you have questions about workplace retaliation, qui tam, or whistleblower cases, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is http://linycemployment.com.

Today’s employment law blog was written by law student intern Thalia Olaya.

FMLA Retaliation and Interference

On July 19, 2017, in Woods v. START Treatment & Recovery Centers, Inc., the highest federal court in New York decided a case relating to the FMLA and answered two important questions.

In the Woods case, the plaintiff was a substance abuse counselor at START. Woods suffers from severe anemia and other medical conditions. For these reasons, Woods requested medical leave on at least four occasions. START is a nonprofit that provides services to narcotic-addicted patients. In 2012, after working at START for approximately five years, Woods was fired twelve days after she returned to work from an FMLA protected leave. Start claims she was fired because of performance issues. Woods, however, claims she was fired because she requested FMLA leave. After Woods was fired, she sued START for FMLA interference and retaliation. After she sued and sat for her deposition, she was asked several questions about a prior incident where she was accused of wrongdoing such as criminal conduct, lying, fabrication, and fraud. Woods decided not to answer these questions and instead, invoked her Fifth Amendment right against self-incrimination.

The FMLA prohibits an employer from interfering, restraining, or denying an employee’s right to exercise a leave of absence under the FMLA. The FMLA also prohibits an employer from retaliating against an employee for exercising their rights under the FMLA. For example, an employer can’t fire an employee for taking FMLA leave.

In this case, the lower court applied a “but-for” causation standard in determining whether START did in fact retaliate against Woods for taking FMLA leave. In other words, Woods had to show that retaliation was the main reason why she was fired. The “but-for” standard is harder to prove than the “motivating factor” standard, which is another causation standard courts often use to determine whether the adverse employment action in an employment discrimination case was in fact illegal. The reason why the “motivating factor” standard is easier to prove is because the employee only needs to show that the adverse action, in this case Woods’ being fired, was motivated, at least in part, because of retaliation.

Another issue in the Woods case, was that the lower court gave the jury an “adverse inference” instruction. This “adverse inference” allowed the jury to infer, if they wanted to, that Woods’ refusal to answer certain questions at her deposition meant that she had basically answered a “yes” to the questions about previous wrongdoing that were asked and thus, they could use it against her when evaluating her credibility.

On July 19, 2017, the Second Circuit ruled that the lower court’s decision was incorrect and held that the “motivating factor” causation standard applies in FMLA retaliation cases and not the “but-for” standard.

Additionally, the Second Circuit ruled that Woods was unfairly prejudiced by allowing the jury to use adverse inferences against her because most of the questions that were asked at her deposition related to whether Woods had been accused of something. The Second Circuit held that accusations alone are not enough to impair someone’s credibility because “the innocent and guilty alike can be accused of wrongdoing.”

Long Island FMLA Lawyers

In sum, courts in New York will have to apply the “motivating factor” standard instead of the heightened “but-for” standard in FMLA retaliation claims. Courts will also have to be careful in their “adverse inference” instructions because they can be unnecessarily prejudicial to the plaintiff.

If you have questions about FMLA retaliation, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is http://linycemployment.com.

Today’s employment law blog was written by law student intern, Thalia Olaya.

A Serious Health Condition Under the FMLA

A “serious health condition” under the FMLA includes “an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.” One of the purposes of the FMLA is to help employees balance the demands of the workplace with their personal medical concerns. However, conditions which qualify as a “serious health condition” for FMLA purposes is often disputed. On June 30, 2017, in Pollard v. The New York Methodist Hospital, the Second Circuit Court of Appeals, New York’s highest federal court, held that a hospital employee who had a benign growth on her foot had a “serious health condition” as defined by the FMLA despite the hospital’s argument that her foot condition did not qualify.

Conditions Requiring Multiple Treatments are Serious Health Conditions

In Pollard, the plaintiff was a medical records file clerk for the New York Methodist Hospital. She developed a soft tissue mass growth on her left foot that became increasingly painful. Pollard decided to have the growth surgically removed and scheduled the surgery for March 28, 2013. Pollard spoke to the hospital’s leave specialist to request FMLA leave for her surgery and post operation recovery. Later, the hospital’s leave specialist responded to Pollard’s FMLA leave request and said that hospital employees needed to provide at least thirty days’ notice of their FMLA leave and requested that she wait until at least April 19 to have the surgery done. Due to the increasing pain and because the growth on her foot was limiting her ability to perform her job since she was required to stand and walk for most of the day, Pollard decided not to reschedule the March 28 surgery date. Pollard underwent surgery on March 28, 2013 and on April 1, 2013, she received a letter stating that she was being fired for not reporting to work on March 28. At the lower district court, Pollard argued that her case was covered under a part of the FMLA which states that “conditions requiring multiple treatments” constitute a “serious health condition.” After the surgery, Pollard followed up with the podiatrist several times for post-operative treatment and evaluations. Yet, the lower court held that Pollard’s foot growth did not qualify as a “serious health condition.” In other words, the lower court thought that she received “treatment” for the growth on her foot only when it was surgically removed and did not think that she had received “multiple treatments” as required by the FMLA. However, on June 30, 2017, the Second Circuit disagreed with the district court’s ruling on what constituted “treatment.” The Second Circuit held that the hospital didn’t prove that Pollard’s required post-operative appointments were not a required part of the surgical treatment. As such, the Second Circuit did not see why the post operative treatment and evaluations that Pollard received were not considered part of the “treatment” as required under the FMLA.

Long Island Employment Lawyers Can Help With FMLA Leave

In sum, although one of the purposes of the FMLA is to help employees balance the demands of the workplace with their personal medical concerns, what qualifies as a “serious health condition” for FMLA purposes may not always be clear. If you have questions about the FMLA or any other benefits to which you may be entitled as a worker in the state of New York, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is http://linycemployment.com.

Today’s employment law blog was written by Thalia Olaya, a Hofstra Law School intern working at Famighetti & Weinick, PLLC, this summer.

The Plausibility Standard

For years, Federal courts applied a liberal “notice pleading” requirement to determine whether complaints should be dismissed or not. Courts looked to determine whether there were enough facts to give notice to the defendants about the basis for the plaintiff’s case. Then, in 2009, the Supreme Court in Ashcroft v. Iqbal, applied a stricter standard and held that complaints must “contain sufficient factual matter, accepted as true” to state a plausible claim for relief. If not, the complaint will likely be dismissed. The Supreme Court did not provide much guidance about what that standard means and so courts have struggled to apply the standard to the cases coming before them.

The Second Circuit Court of Appeals, New York’s Federal appellate court, faced these questions in Irrera v. Humpherys, which is discussed below.

Court Determines Retaliation Case is Plausible

Irrera was a graduate music student at the Eastman School of Music of the University of Rochester, one of the nation’s most highly regarded music schools. At Eastman, Irrera was pursuing a doctor of musical arts degree and Humpherys was the chair of the piano department and one of his teachers.

On multiple occasions, Humpherys made unwanted sexual advances towards Irrera, which Irrera refused to accept. Some of the unwanted advances included caressing his shoulder, rubbing his hands up and down Irrera’s arms during a piano lesson, blowing kisses at him, and looking at him up and down in a sexual manner.

As a student pursuing a doctor of medical arts degree, Irrera had to perform two solo recitals. Despite being told repeatedly by Humpherys that he was ready and that he would do well, Irrera failed both of his recitals.

Irrera was shocked because in the 27 years that he had been playing the piano, this was the first time that he failed a solo recital. Not surprisingly enough, however, the recitals were judged by a panel of three professors, including Humpherys.

In a recorded conversation, Humpherys told Irrera that he “would never get a university professor job,” and threatened to “make his life a living hell” if he reported the sexual harassment. Regardless, Irrera complained to a school dean.

After Irrera received his degree from Eastman, he applied to 28 colleges and universities for teaching positions in their piano departments. However, Irrera did not receive even one interview invitation.

At issue in Irrera’s case was whether his inability to secure a job interview was caused by Humpherys in retaliation for Irrera rejecting his prior sexual advances.

Irrera lost his retaliation claim at the District Court because the court held that his claim was speculative. The court held that Irrera didn’t state factual allegations in the complaint suggesting that Humpherys provided Irrera’s potential employers with any kind of reference, including a negative reference.

On June 15, 2017, however, the Second Circuit reversed the District Courts decision on the retaliation claim. In holding that Irrera’s retaliation claim was plausible, the Second Circuit held that although it wasn’t impossible that all 28 schools didn’t give Irrera an interview based on his credentials, it was in fact plausible that the schools received negative references from Humpherys.

The Second Circuit also concluded that Irrera had stated a plausible retaliation claim because Humpherys had previously warned Irrera that he would make his life a “living hell” if he reported the sexual advances. Additionally, since Humpherys was the chair of the department, it was plausible that the schools, to which Irrera applied to, would contact Humpherys even though he was not listed as a reference.

Notably, the Second Circuit held that Irrera’s complaint was sufficient even though Irrera did not allege that he was aware of any particular instance in which the defendants sent a negative reference to a school. The Court used its “common experience” to hold that colleges “rarely, if ever, disclose the content of the references they receive.” The sum of the circumstances suggested that the retaliation was plausible.

In sum, this case reminds us that the plausibility standard is not always clear and lawyers and plaintiffs must draft well pleaded complaints to survive possible challenges by defendants to dismiss the case. If you think you have faced retaliation in the workplace or if you have questions about filing a discrimination or retaliation lawsuit, contact the Long Island employment lawyers of Famighetti & Weinick, PLLC at 631-352-0050.

Today’s employment law blog about workplace retaliation lawsuits was written by Thalia Olaya, a Hofstra Law School intern working at Famighetti & Weinick, PLLC, this summer.