EEOC Issues Final Rule on the “Reasonable Factor Other Than Age” Defense to Disparate Impact Age Discrimination Claims Brought Under The ADEA

The EEOC recently issued a final rule amending the regulation (29 C.F.R. § 1625.7) governing the “reasonable factor other than age” (RFOA) defense in “disparate impact” cases brought under the Age Discrimination in Employment Act of 1967.

The defense only applies in “disparate impact” cases and – in line with Supreme Court precedent – not to claims “conditioned on an age-based intent to discriminate” (such as where the employment practice at issue “uses age as a limiting criterion”).

An employer who raises the RFOA defense bears the burden of persuasion and production to demonstrate it.  The following (non-dispositive and exemplary) considerations are relevant to whether a practice is based on a RFOA:

(i) The extent to which the factor is related to the employer’s stated business purpose;

(ii) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;

(iii) The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;

(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and

(v) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

29 C.F.R. § 1625.7(e)(2).

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Labor Law § 240(1) Does Not Require Plaintiff To Show That His Injury Was Foreseeable Except In Case Involving the Collapse of a Permanent Structure

In a decision issued on March 29, 2012, the Appellate Division, First Department, held in Ortega v. City of New York that, in a Labor Law § 240(1) case – here, arising from plaintiff’s use of a “tremie rack” (example pictured) – “a plaintiff is not required to demonstrate that the injury was foreseeable, except in the context of a collapse of a permanent structure” and that “[o]utside the permanent structure collapse context, a plaintiff simply needs to show that he or she was injured while engaged in a covered activity, and that the defendant’s failure to provide adequate safety devices of the type listed in Labor Law § 240(1) resulted in a lack of protection”.

The court held that there was “no need for plaintiff to submit expert testimony on foreseeability or otherwise establish that the accident was foreseeable as part of his prima facie case”.  It thus reversed the lower court’s denial of summary judgment to plaintiff, and held that the motion should have been granted.

The court described plaintiff’s injury – which occurred while plaintiff was working on the Second Avenue Subway Tunnel Construction Project – as follows:

[P]laintiff stood on a work platform located eight feet above the ground and contained within a metal cage known as a tremie rack. This was a rectangular structure, approximately 12 feet high. In addition to housing a work platform, the tremie rack contained vertical slots in which heavy tremie pipes were held. These pipes had a collar at one end and were kept in place by square shaped holders referred to as “keepers.” The rack was resting on unsecured wooden planking that was meant to level the gravel surface below. Plaintiff was ejected from the platform when the collar of a tremie pipe that was being hoisted by a multi-ton rig got caught on the keeper, and caused the tremie rack to tip over onto its side.

The court declined defendant’s invitation to extend the “limited foreseeability requirement beyond the confines of permanent structures … that are not safety devices by their nature” and to “burden plaintiffs with expert testimony showing that the precise nature of the accident was foreseeable as part of his prima facie case even though the tremie rack where the accident occurred was clearly not a permanent structure.”  Reading this requirement into the statute “would go directly against the legislative intent [of the Labor Law].”

The court went on to explain the impact of this determination on Mr. Ortega’s claims:

[I]n the present case, a device precisely of the sort enumerated by the statute was not “placed and operated” as to provide adequate protection to plaintiff … . The tremie rack, which was taller than it was wide, was not in a fixed position, but rather, rested upon wooden planks atop an uneven, gravel surface. Plaintiffs made out a prima facie case in that they established with evidence in admissible form that plaintiff … was working at a construction site and was injured as the result of the gravity-related hazard created by the elevation differential of the tremie rack in which plaintiff was working, and that the rack, which should have been secured to the ground, but was not, failed to protect him. Indeed, here, unlike [a case] where the plaintiff failed to demonstrate that protective devices could have prevented the accident, plaintiffs submitted testimony indicating that the accident could have been prevented had the tremie been secured to the ground[.]

After thus concluding “that foreseeability is a non-issue in establishing Labor Law § 240(1) liability in this case”, the court nevertheless went on to state that “if foreseeability were a required element, plaintiffs have nevertheless demonstrated their entitlement to partial summary judgment as to liability on the Labor Law § 240(1) claim”.  This was because “[i]t was foreseeable both that the plaintiff could fall off the elevated work platform and that the entire tremie rack could topple over because the tremie rack on which plaintiff was working was a mobile, elevated work platform that … was taller than it was wide and rested upon wooden planks atop an uneven, gravel surface.”

Posted in Construction Accidents, Labor Law 240(1) | Leave a comment

2d Circuit Upholds Suspension of 10-Year Old Who Expressed Desire to Blow Up School

In a March 22, 2012 opinion (authored by Judge Ralph Winter), the Second Circuit held, in Cuff v. Valley Central School District et al., that the defendant school did not violate a student’s First Amendment rights by suspending him for six days after he created a crayon drawing in which he expressed his desire to “[b]low up the school with the teachers in it.”

The Court derived the applicable law from the Supreme Court’s Tinker (1969) and Hazelwood (1988) decisions, and cases applying them:

[T]he First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. … Student speech may be curtailed if the speech will materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. … School authorities may suppress student speech to prevent material disruption in the schools, when they have more than an undifferentiated fear or apprehension of disturbance and can show that their action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. …

[T]he relevant inquiry is whether the record . . . demonstrate[s] . . . facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities. … This test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable. Rather, the question is whether school officials might reasonably portend disruption from the student expression at issue. …

The test is an objective one, focusing on the reasonableness of the school administration’s response, not on the intent of the student.  … [I]n the context of student speech favoring violent conduct, it is not for courts to determine how school officials should respond. School administrators are in the best position to assess the potential for harm and act accordingly.

Applying this standard, the Court found the requisite foreseeability of disruption:

[I]t was reasonably foreseeable that the astronaut drawing could create a substantial disruption at the school. When B.C. was suspended, he had a history of disciplinary issues, and his other earlier drawings and writings had also embraced violence. … In addition, the astronaut drawing was seen by other students in the class, and caused [another student], who observed B.C. with the drawing, to leave her seat and bring it to [the teacher]’s attention. [The teacher] perceived C.P. to be “very worried” about the drawing.

Whether B.C. intended his “wish” as a joke or never intended to carry out the threat is irrelevant. Nor does it matter that B.C. lacked the capacity to carry out the threat expressed in the drawing. … Courts have allowed wide leeway to school administrators disciplining students for writings or other conduct threatening violence. …

The threat of substantial disruption was aggravated by B.C.’s sharing of his “wish” with fellow students, an act reasonably perceived as an attention-grabbing device. School administrators might reasonably fear that, if permitted, other students might well be tempted to copy, or escalate, B.C.’s conduct. This might then have led to a substantial decrease in discipline, an increase in behavior distracting students and teachers from the educational mission, and tendencies to violent acts.[] Such a chain of events would be difficult to control because the failure to discipline B.C. would give other students engaging in such behavior an Equal Protection argument to add to their First Amendment contentions.

School administrators also have to be concerned about the confidence of parents in a school system’s ability to shield their children from frightening behavior and to provide for the safety of their children while in school. B.C.’s “wish,” being known by many students, could easily have become known to a number of parents who could reasonably view it as something other than a contribution to the marketplace of ideas. While parents do not have the right to monitor student speech, they could reasonably be concerned about the safety of their children in the present circumstances.  A failure of the appellees to respond forcefully to the “wish” might have led to a decline of parental confidence in school safety with many negative effects, including, e.g., the need to hire security personnel and even a decline in enrollment.

Thus, appellees could reasonably have concluded that B.C.’s astronaut drawing would substantially disrupt the school environment, and their resulting decision to suspend B.C. was constitutional.

Judge Pooler disagreed, concluding her dissent with the following observation:

B.C.’s teacher explicitly suggested that her students consider writing about missiles. While the concept of irony may seem well beyond the ken of an average ten-year-old, young children routinely experiment with the seeds of satire. They learn by fumbling their way to finding the boundaries between socially permissible, and even encouraged, forms of expression that employ exaggeration for rhetorical effect, and impermissible and offensive remarks that merely threaten and alienate those around them.

This young boy’s drawing was clearly not some subtle, ironic jab at his school or broader commentary about education. It was a crude joke. But the First Amendment should make us hesitate before silencing students who experiment with hyperbole for comic effect, however unknowing and unskillful that experimentation may be.

Posted in Court Decisions, First Amendment, School Litigation, Section 1983 | Tagged , , , | Leave a comment

83-Year Old Woman Sues Apple After Walking Into Store’s Glass Facade

Below is the complaint filed by Evelyn Paswall on March 20th against Apple Inc. According to the suit, Ms. Paswall “walked directly into the clear glass doors at [the store] and fractured her nose.”  The allegations pertaining to Apple’s alleged negligence are largely set forth in paragraphs 18 and 19.

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Court Decision: Cornell Bridge Suicide Lawsuit Continues

In a decision issued on March 15, 2012 in Ginsburg v. Cornell University et. al., 11-cv-01374, the court denied defendants’ motion for a judgment on the pleadings, permitting the lawsuit – brought by the father of a Cornell student who killed himself by jumping off the Thurston Avenue Bridge (pictured) near the Cornell campus – to continue.  Plaintiff contends that the defendants were negligent by failing to implement adequate suicide prevention measures on the bridge.

Initially, plaintiff sufficiently alleged that Cornell and Ithaca jointly controlled the bridge and, therefore, both owed the decedent a duty to maintain the bridge in a reasonably safe condition to prevent foreseeable suicides.

The court rejected defendant’s argument that the suicide was unforeseeable, noting that “the possibility that [decedent] in particular would commit suicide is irrelevant” and that “[i]t was clearly foreseeable that someone may commit suicide by jumping off” the bridge:  “[T]he history of suicides and suicide attempts, defendants’ public acknowledgment of the phenomenon, and the bridge’s accessibility to a student population—fifteen percent of which regularly considers suicide—shows defendants had actual, or at least constructive, knowledge that a suicide attempt from the bridge was foreseeable.”

Plaintiff also sufficiently alleged “that defendants knew suicides were likely to occur or recur on the area bridges but failed to take reasonable measures to prevent such conduct despite an opportunity to do so.”  In particular, the court noted that the redesign/reconstruction upon which defendants relied nevertheless failed to prevent the decedent’s suicide.  It was premature to determine, on defendants’ motion, that the bridge was not in an unreasonably dangerous condition when plaintiff’s son jumped.

As to defendants’ argument that the “affirmative act of jumping from the bridge was an intervening, superseding act that cut off any liability on their part”, the court held that, in light of the fact that “defendants’ duty was to maintain the [bridge] in a reasonably safe condition as to prevent suicides” and that “one of the purposes of the … redesign and reconstruction of the bridge was to fulfill that obligation”, the decedent’s “affirmative act of jumping from the bridge cannot be considered extraordinary or unforeseen” in a situation where, as here, “the intervening act is itself the foreseeable harm that shapes the
duty imposed”.  In these circumstances, “the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs”.

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Discrimination Lawsuit Against Union League Club

Below is the complaint filed on March 16th by Alina Borgovan against the Union League Club, containing her allegations that she was subjected to sexual harassment, discrimination based on her national origin (Romanian), and fired in retaliation for complaining of this conduct.

Posted in Court Complaints, Hostile Work Environment, National Origin Discrimination, NYC Human Rights Law, Retaliation, Sexual Harassment | Tagged , , , , | Leave a comment

SDNY Reiterates Section 1983 / Monell Pleading Requirements

In Carpinone v. City of New York, No. 11 Civ. 2074 (PAE), the SDNY recently clarified the pleading requirements for a claim under Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978).  SDNY Judge Engelmayer dismissed plaintiff’s complaint on the pleadings under Federal Rule of Civil Procedure 12(c).

Plaintiff alleged that he was “wrongfully assaulted” by members of the NYPD while they were effectuating his arrest and that the NYPD “failed to prevent” this wrongful assault “although it could have done so in the exercise of reasonable care.”  Plaintiff initially sued the City of New York, as well as six “John Doe” NYPD officers.  The court dismissed all claims against the individual officers after plaintiff failed to comply with an order to amend his complaint to include their names.

The only claim remaining was plaintiff’s claim under 42 U.S.C. § 1983 against the City.  The court summarized the legal requirements for such a claim:

Local governing bodies, such as [New York] City, may be sued directly under § 1983 only where a violation of rights resulted from the government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. … In order to demonstrate Monell liability in this Circuit, plaintiff must show, in addition to a violation of his constitutional rights: (1) the existence of a municipal policy or custom . . . that caused his injuries beyond merely employing the misbehaving officer[s]; and (2) a causal connection—an affirmative link—between the policy and the deprivation of his constitutional rights.

Plaintiff failed to allege anything that could “be construed as a municipal policy or custom that led to the violation of his constitutional rights.”  His “bare bones” allegations that the individual officers “wrongfully assaulted him” and that this assault resulted in “physical injury” were likely insufficient to satisfy the “plausibility” requirement for pleadings in federal court.   In any event, municipalities are not responsible for the torts of their employees under § 1983 through the theory of respondeat superior.

Plaintiff’s only remedy, therefore, was under Monell.  He failed here, as well:

[T]he Complaint falls far short of pleading a plausible theory of municipal liability. Plaintiff’s allegations as to the existence of a municipal policy or custom consist solely of the conclusory statement that the New York City Police Department “could have [prevented the wrongful assault] in the exercise of reasonable care” and a run-down of the legal elements of a Monell claim. Plaintiff’s Complaint is a paradigmatic pleading that contains no more than “labels and conclusions” and “a formulaic recitation of the elements of a cause of action,” neither of which move the allegations in the Complaint across the line from possible to plausible. … Plaintiff offers no facts which would render plausible his allegations of a policy or custom within the New York City Police Department that was affirmatively linked to the purported constitutional violations he suffered.

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