THE NEW YORKEMPLOYEEADVOCATENELA

VOLUME 13, NO. 3 February 2006 Rachel Geman, Gary Trachten, Co-Editors

National Employment Lawyers Association/New York • Advocates for Employee Rights

New Interview Column

NELANY:WinterQuarterlyInterviewOn November 17, 2005, at its Annu-al Gala Dinner in New York City,NELA/NY once again celebrated“Courageous Plaintiffs Who FoughtBack.” Last year’s honorees werethe plaintiffs in the following threelawsuits: (1) Alston et al v. Lieb-herr America, Inc.; (2) Rotondov. City of New York; and (3) Campos, Martinez, Cenostin v.Tratoras Construction, Inc.. Inthis issue of NELA/NY Quarterly,we feature interviews with thelawyers who represented theseplaintiffs: Joshua Friedman; AnneGolden and Carmelyn Malalis; andRichard Bellman. Interviews wereconducted by Nicholas Diamand.1

INTERVIEW WITH RICHARD F. BELLMAN

Legal Director of the Anti-Discrimination Center of

Metro New York:Campos, Martinez, Cenostin v.

Tratoras Construction, Inc.

ND. Please summarize the case andthe claims.

RB. This case involved a strugglethat began in 1995 by three minor-ity women to work as laborers on afederally funded construction pro-

This past fall, the Supreme Courtresolved a circuit split to rule that: (1) timespent walking between changing and pro-duction areas is compensable; (2) timespent traveling to and from the produc-tion area after donning (putting on) andbefore doffing (taking off) protective gearis compensable; (3) time spent waiting todoff is compensable; and (4) time spentwaiting to don is not compensable. IBPv. Alvarez, 126 S.Ct. 514 (2005).

Experienced Fair Labor Standards Act(“FLSA”) practitioners can glean frommy introductory paragraph alone that thisopinion was a victory for plaintiffs and aboon to a plaintiff’s employment law prac-tice. Other employment lawyers mayrequire a little bit of context, history, orexplanation. The sub-category of wageand hour law at issue in Alvarez was“compensable time”—how to define anddelimit the hours that the employer mustpay for.

In 1938, the FLSAestablished, amongother things, minimum wage and over-time protection for most Americanworkers. 29 U.S.C. § 201 et seq. It did not,however, define “workweek” or “work.”This gap in the law occasioned much lit-igation in the early years of the FLSA. In1946, the Supreme Court defined theworkweek as “all time during which anemployee is necessarily required to be onthe employer’s premises, on duty or at aprescribed workplace.” Anderson v. Mt.Clemens Pottery Co., 328 U.S. 680(1946). So, for example, employers were

held to be required to pay miners for thetime spent crawling between the mineentrance and the coal seam.

This early FLSA jurisprudence pro-voked howls of resentment from employergroups. In all fairness, those groups com-plained not about the money that theywould have to pay, but rather about the set-tled expectations, the customs and usagesthat would be upset by the compensationscheme. Accordingly, in 1947, Congresspassed the Portal-to-Portal Act. The PortalAct treated then-existing claims one wayand prospective claims another. As toprospective claims, the following weremade non-compensable:1 travel to andfrom the actual place of performance ofthe employee’s principal activities andactivities which are preliminary or postlim-inary2 to principal activities, which occurprior or subsequent to the beginning or endof the principal activities. 29 U.S.C. §254(a). Clear enough? Of course not.

The Portal Act and regulations pro-mulgated thereunder begat such litigationas Steiner v. Mitchell, 350 U.S. 247(1956). The Steiner battery-plant work-ers were required by state health andhygiene laws to change clothes and show-er at the workplace; showering andchanging were held compensable—because these were principal activities, i.e.,integral and indispensable parts of the principal activities and not specificallyexcluded by the cited language of the Portal Act. This means that the donning

FLSA: U.S. Supreme Court ClarifiesPre-Don Post-Doff Compensable TimeIssues, and Why You Should Careby Jonathan Bernstein

See FLSA, page 27See INTERVIEW, page 24

A Word from Your PublisherThe New York Employee Advocate is published quarterly by the National Em-ployment Lawyers Association, New YorkChapter, NELA/NY, 3 Park Ave., 29thFloor, New York, New York 10016. (212)317-2291. E-mail: NELA/NY@ nelany.com.Unsolicited articles and letters are wel-come but cannot be returned. Publishedarticles do not necessarily reflect the opinion of NELA/NY or its Board ofDirectors, as the expression of opinion byall NELA/NY members through thisNewsletter is encouraged. © 2005 Nation-al Employment Lawyers Association/NewYork Inc.

Items for the calendar may be submittedby calling Shelley Leinheardt: (212) 317-2291Fax: (212) 977-40053 Park Avenue, 29th FloorNew York, NY 10016E-mail: NELA/NY@NELA/NY.com

Editors: Rachel Geman, Gary Trachten

Executive Board of NELA/NY: William D. Frumkin (President), Jonathan Ben-Asher (Vice President)Darnley D. Stewart (Vice President)Anne Golden (Secretary)Susan Ritz (Secretary)Philip E. Taubman (Treasurer)Lee F. Bantle, Ronald G. Dunn, JoshuaFriedman, Rachel Geman, Craig Gurian,Margaret McIntyre, Justin Swartz

Executive Director: Shelley Leinheardt

“You Say Goodbye,and I Say Hello”:NELA BoardChangesOutgoing Executive Board Mem-bers: Dave Fish, Bob Herbst, AdamKlein, and Bob Stroup. Thank youfor your dedication and years of ser-vice to NELA/NY!

New Executive Board Members:Craig Gurian. Margaret McIntyre,Justin Swartz. Welcome to the newmembers!

NELA Member NewsNELA member Vivian Berger marriedMichael Finkelstein on Sunday, January29, 2006. Congratulations!

Call Shelley for advertising informationat (212) 317-2291. The following is ourrate schedule:Full Page: $250.00Half Page: $150.00Quarter Page: $80.00Eighth Page: $45.00Advertising in our Classified Section isonly $25.00 for 6 lines, plus $5.00 for eachadditional line.

Advertise in the New York Employee Advocate

2

February 16, 2006Sexual Harassment/Discrimination Committee Meeting100 Church Street, Suite 1605Meetings 2nd Tuesday of every month

February 15, 2006 • 6:15 p.m.Executive Board Meeting3 Park Avenue, 29th floor(Open to all members in good standing)

March 1, 2006 • 6:30–8:30NELA Nite3 Park Avenue, 29th FloorTopic: Document Technologies(Details to Follow)

April 7, 2006 • 9-1:00 pmUpstate Spring ConferenceDoubletree HotelSyracuse, NY(Brochure to Follow)

April 19, 2006 • 6:15Executive Board Meeting3 Park Avenue, 29th floor(Open to all members in good standing)

April 26, 2006 • 6:30–8:30NELA Nite3 Park Avenue, 29th FloorLori Matles, Mediator(Details to Follow)

April 28, 2006 • 9-1:00 pmUpstate Spring ConferenceAlbany Law SchoolAlbany, NY(Brochure to Follow)

May 5, 2006NELA Spring ConferenceYale Club of NYC(Brochure to Follow)

May 24, 2006 • 6:30–8:30NELA NiteFrank D. Tinari, Ph.DTinari Economics Group(Details to Follow)

June 14, 2006 • 6:15 pmExecutive Board Meeting3 Park Avenue, 29th floor(Open to all members in good standing)

June 23–26, 2006NELA National ConventionSan Francisco MarriottSan Francisco, CA(Brochure to Follow)

June 28, 2006 • 6:30–8:30NELA Nite3 Park Avenue, 29th FloorSex Harassment/Sex DiscriminationCommittee Presentation(Details to Follow)

The NELA/NY

Calendar of Events

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President’s Columnby Bill Frumkin, President, NELA/NY

New MembersZafer A. Akin Esq.Akin & Smith, LLC305 Broadway, Ste 1101New York, NY 10007Work: 212-587-0760Fax: 587-4169akin99@yahoo.com

Patrick Boyd Esq.The Boyd Law Group, PLLC230 Park Avenue, Ste. 1000New York, NY 10169Work: 212-808-3054Fax: 808-3020pboyd@theboydlawgroup.com

Brendan Chao Esq.Attorney & Counselor at Law150 Great Neck Rd, Ste 304Great Neck, NY 11021Work: 516-466-2033Fax: 466-2007bchao@bchaolaw.com

David A. Colodny Esq.Senior Staff AttorneyUrban Justice Center666 Broadway, 10th FloorNew York, NY 10012Work: 646-459-3006Fax: 212- 533-2241dcolodny@urbanjustice.org

Nicholas Diamand Esq.Lieff, Cabraser Heimann &Bernstein, LLP780 Third Avenue - 48th FloorNew York, NY 10017Work: 212-355-9500Fax: 355-9592ndiamand@lchb.com

Denise Dunleavy Esq.Kramer & Dunleavy LLP350 Broadway, Ste 1100New York, NY 10013Work: 212-226-6662Fax: 226-8089dmd@kramerdunleavy.com

See NEW MEMBERS, page 20

The recent nomination of Samuel Alitoto the United States Supreme Court hasraised some interesting issues as to whatNELA/NY could, should, or should notdo in terms of taking a position withrespect to his nomination. Specifically,during the second week of January, Ireceived an e-mail indicating that theTexas Employment Lawyers Association(“TELA”), NELA’s Texas affiliate, issueda press release coming out against JudgeAlito’s nomination.

At first blush, it appeared to me thatNELA/NYshould do the same. The Exec-utive Board e-mailed among ourselvesconcerning whether NELA/NY shouldassume a similar position. Ultimately, theconsensus was that it might be problem-atic for us, as the Executive Board of abar association to just assume that ourmembership would be against JudgeAlito’s nomination. Certainly, anyone fol-lowing the nomination closely should beaware that his decisions on employmentmatters have generally been against theinterests of our clients. Notwithstanding,this raises the greater philosophical issueof should the Executive Board just assumethat the membership is in favor of suchaction without pursuing this through a ref-erendum or other mechanism.

The legislative efforts of NELANational have certainly been warmlyreceived by its members throughout thecountry. No one (I would think) wouldhave any problem with the amendmentsto the Civil Rights Tax Fairness Act, whichhave provided such a great improvementin our ability to settle cases for the bene-fit of our clients. This begs the questionof whether the backing of legislation thatmay be good for our members is the samething as backing or opposing judicial can-didates. I know that NELA National hasconsistently opposed the nominations ofdistrict court and circuit judges that werenot in line with our clients’ interests, pre-sumably without objection. However,although there has been much discussionabout backing and opposing judicial can-didates (certainly at the state level), I as

a long-time NELA/NY member am notaware of any specific procedure that hasbeen developed to poll the entire mem-bership to determine whether to say ’yea’or ’nay’ with respect to a specific candi-date. I am not saying that Judge Alitowould have been a friend to employees.Rather, I am just addressing the greaterissue of what position our bar associationshould take with respect to prospectivecandidates in terms of taking the temper-ature of its members, or just assuming, asan Executive Board, or Judicial Com-mittee, that a particular candidate issomeone who we should or should notsupport.

What it comes down to is this: shouldwe have a process to democratically takea position with respect to this issue? I don’thave the answer, but I would welcomeinput with respect to how the membershipviews this issue. Rather than bantering thisquestion around on the ListServ, I am ask-ing people to e-mail their comments toShelley Leinheardt directly. The Execu-tive Board is committed to acting inaccordance with the views of our mem-bership and in an area such as the backingof judicial candidates, it seems only rea-sonable that we receive guidance. Possiblyour Judicial Committee can act as a clear-inghouse. If people view the backing oflegislation similarly (although I personal-ly think it is not the same because aparticular bill is going to have a particu-lar purpose, and a judicial candidate willbe confronted with numerous issues, someof which may be favorable and some unfa-vorable to our clients) we would like tobe made aware of such concerns as well.As a democratic organization the ExecutiveBoard needs direction. As long as I amPresident it will be my goal to operate inthis fashion. Overall, I think it is fair tosay that fourteen people (the ExecutiveBoard) can assume what the views of threehundred will be to a point, and this is oneof those situations when I believe a sys-tem needs to be developed to democratizehow we arrive at our position.

See PRESIDENT, page 18

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Holiday Party, December 8th, 2005

George Wayne Outten Washington President Bill Frumkin (D NY) Roz Fink and Jan Goodman

“Round 1 of this match goes to…” Patrick Delince and Liz Schalet “You didn’t like my joke?”MC Phil Taubman

“What do you mean I can’t have another drink? Ithought this was a ’bar’ association!” Patrick Boyd

“Josh, it wasn’t that funny.”Mahima Joishy and Josh Friedman

Eliot Baumgart and Shelley Leinheardt“Thanks, Shelley, for the captions.”

“What a long trip (from LI) it’s been!”Matt Porges and Rick Ostrove

5

When the U.S. Supreme Court decid-ed Desert Palace v. Costa, 539 U.S. 90(2003), there was great rejoicing in theplaintiffs’employment bar. Desert Palacevery clearly held that neither direct evi-dence nor any other heightened evidentiaryshowing was required to trigger a mixed-motive analysis. Mixed-motive analysisshifts the burden of proof to the employ-er to show that it would have made thesame adverse employment decision evenabsent discrimination. But the jubilationwas premature, and we have begun towonder whether Desert Palace ever real-ly happened.

After the Supreme Court’s opinion onmixed-motive analysis in Price Water-house v. Hopkins, 490 U.S. 228 (1989),several circuits had grafted the require-ment onto mixed-motive analysis that aplaintiff must show direct evidence of dis-crimination before that analysis wouldapply. “Direct evidence” is evidence thatdoes not require the fact-finder to makean inference, as opposed to “circumstan-tial evidence,” which does require aninference. One classic illustration involvesevidence of rain. Seeing the rain out thewindow is direct evidence. Seeing some-one enter the room with a wet umbrellais circumstantial evidence because itrequires the viewer to infer that it was rainthat made the umbrella wet. See U.S. v.Henderson, 693 F.2d 1028, 1031 (6th Cir.1982) (facts asserted on the basis of thewitness’s personal knowledge are directevidence, whereas testimony to other factsand circumstances from which the jurymay make inferences as to facts is cir-cumstantial evidence); 22 Charles AlanWright & Arthur R. Miller, Federal Prac-tice and Procedure § 5162.

Direct evidence of the ultimate issuein a Title VII racial discrimination case

could include, for example, a letter fromthe plaintiff’s supervisor stating, “I amfiring you because of your race.” Sincedirect evidence is obviously hard to comeby, requiring it before a court will shiftthe burden to the employer to prove thatit would have taken the same adverseaction against the plaintiff even absent adiscriminatory motive means that mixed-motive analysis loses much of itsusefulness to plaintiffs.

In 1991, Congress amended Title VIIto undo some bad case law that had grownup to choke the statute. Among otherthings, it added 42 U.S.C. §§ 2000e-2(m)and 2000e-5(g)(2)(B). Subsection (m)provides: “Except as otherwise providedin this subchapter, an unlawful employ-ment practice is established when thecomplaining party demonstrates that race,color, religion, sex, or national origin wasa motivating factor for any employmentpractice, even though other factors alsomotivated the practice.”

Subsection 5(g)(2)(B) provides that ifan employee proves a violation under sub-section 2(m), “the employer has a limitedaffirmative defense that does not absolveit of liability, but restricts the remediesavailable to a plaintiff. The available reme-dies include only declaratory relief, certaintypes of injunctive relief, and attorney’sfees and costs.” Desert Palace, 539 U.S.at 94 (internal citation omitted). There isno requirement anywhere in Title VII thatthe subsection 2(m) analysis cannot applyunless the plaintiff offers direct evi-dence—or any other heightened form ofproof—of discrimination.

Nonetheless, most circuits continuedto require plaintiffs to proffer direct evi-dence of discrimination before they wouldapply a mixed-motive analysis. TheSupreme Court resolved the circuit splitin its 2003 Desert Palace decision.

In Desert Palace, the Supreme Courtrecognized that the plain language of TitleVII does not require plaintiffs to offerdirect evidence in order to invoke themixed-motive analysis. “The questionbefore us in this case is whether a plain-

tiff must present direct evidence of dis-crimination in order to obtain amixed-motive instruction under Title VII.… We hold that direct evidence is notrequired.” Id., 539 U.S. at 92. Later, theCourt noted that the text of the 1991 Actitself “leav[es] little doubt that no specialevidentiary showing is required,” id. at99 (emphasis added), including direct evi-dence or any other heightened showing.

But even after both Congress and theSupreme Court have spoken, a number ofdecisions from various courts around thecountry continue to flout, and, in somecases, ignore, Desert Palace by requiringdirect evidence or some other heightenedshowing from plaintiffs making a mixed-motive argument. Given the importanceof this analysis and the fact that many ofthese cases are within the Second Circuit,our alarms should be sounding.

In the Second Circuit, there are at leastthree district court decisions and one courtof appeals decision in this group: Stonev. Board of Educ. of Saranac CentralSchool Dist., 2005 WL 2861618 (2d Cir.Nov. 2, 2005) (unreported summaryorder); Monte v. Ernst & Young LLP,330 F. Supp. 2d 350 (S.D.N.Y. 2004)(Swain, J.); Schreiber v. Worldco, LLC,324 F. Supp. 2d 512 (S.D.N.Y. 2004)(Chin, J.); and Soderberg v. GuntherInternational, Ltd., No. 3:02 CV 2010(PCD), 2004 WL 57380 (D. Conn. Jan.7, 2004).

Stone is an example of a court’s sim-ply ignoring the Desert Palace ruling:

Regarding plaintiff’s theory of“mixed motive” discrimination, itis well-settled that “to warrant amixed-motive burden shift, theplaintiff must be able to producea ’smoking gun’or at least a ’thickcloud of smoke’ to support his allegations of discriminatory treat-ment.” Raskin v. Wyatt Co., 125F.3d 55, 61 (2d Cir. 1997).

Stone at *2.

Did We Imagine Desert Palace?By Anne Golden* and Piper Hoffman**, Outten & Golden LLP

See DESERT PALACE, next page

* Anne Golden is a founding partner of Outten &Golden LLP. She represents individual employ-ees in negotiations and litigation. Ms. Golden isa board member of NELA/NY.

** Piper Hoffman is a senior associate at Outten &Golden LLP. She represents employees in classactions and in individual negotiations and liti-gation.

Other circuits that have refused to fol-low Desert Palace include the Third,Sixth, Eighth, and Eleventh. See Kovoorv. School District of Philadelphia, 93Fed. Appx. 356, 359, 2004 WL 363299, at*3 (3d Cir. 2004) (“a mixed motive chargewas inapplicable because there was nodirect evidence linking discriminationwith the failure to promote”); Lepore v.Lanvision Systems, Inc., 113 Fed. Appx.449, 452-453, 2004 WL 2360994, at *3(3d Cir. 2004) (unpublished opinion)(mixed motive claim “properly rejected”because plaintiff had not “cleared the highevidentiary hurdle of Price Water-house”); Sigall-Drakulich v. City ofColumbus, 2005 WL 3419995, at *5-6(6th Cir. 2005) (unpublished decision)(where a plaintiff offers only circumstan-tial evidence of discrimination, she mustprove pretext); Hunter v. GeneralMotors Corp., 149 Fed. Appx. 368, 373,2005 WL 2033323, at *4 (6th Cir. 2005)(unpublished decision) (plaintiff must pro-duce “direct evidence that the employerconsidered impermissible factors when itmade the adverse employment decisionat issue” when alleging mixed motives)(internal citation omitted); Simpson v.Des Moines Water Works, 425 F.3d 538,542 (8th Cir. 2005) (“the McDonnellDouglas framework remains the propermode of analysis for summary judgmentcases”); Johnson v. AT & T Corp., 422F.3d 756, 760 (8th Cir. 2005) (“evidenceof additional motives, and the questionwhether the presence of mixed motivesdefeats all or some part of plaintiff’s claim,are trial issues, not summary judgmentissues”); Kratzer v. Rockwell Collins,Inc., 398 F.3d 1040, 1045-46 (8th Cir.2005) (plaintiff “may proceed under PriceWaterhouse [only] if she produces directevidence”); McShane v. U.S. AttorneyGen., 144 Fed. Appx. 779, 792-793, 2005WL 1799435, at *12 (11th Cir. 2005)(unpublished decision) (mixed-motiveanalysis does not apply where plaintiffhas not shown that defendant’s profferednon-discriminatory reason for the adverseaction was pretextual).

Circuits that have followed the SupremeCourt’s clear ruling in Desert Palaceinclude the First, Fourth, Fifth, Ninth,Tenth, and the Court of Federal Claims.

See Burton v. Town of Littleton, 426F.3d 9, 19 -20 (1st Cir. 2005); Diamondv. Colonial Life & Acc. Ins. Co., 416F.3d 310, 317 (4th Cir. 2005); Mereish v.Walker, 359 F.3d 330 339 -340 (4th Cir.2004); Richardson v. MonitronicsIntern., Inc., 2005 WL 3485872, at *3-4 (5th Cir. 2005) (“a plaintiff in a Title VIIaction need only provide circumstantialevidence of discrimination to be entitledto proceed under the mixed-motive frame-work”); Bell v. Kaiser Found. Hosp.,122 Fed. Appx. 880, 882, 2004 WL2853107, *1 (9th Cir. 2004); Medina v.Income Support Div., 413 F.3d 1131,1135 (10th Cir. 2005) (noting that DesertPalace recognized the modification bystatute of Price Waterhouse); Chris-tensen v. U.S., 60 Fed. Cl. 19, 26 (Fed.Cl. 2004).

While some courts simply ignoreDesert Palace, others attempt to distin-guish it or explain it away. As shownabove, the Eighth Circuit has ruled thatDesert Palace applies only at trial, andnot at the summary judgment stage. Grif-fith v. City of Des Moines, 387 F.3d 733,735 -736 (8th Cir. 2004). Therefore, plain-tiffs in the Eighth Circuit still must provethat a defendant’s proffered non-discrim-inatory explanation for its adverse actionis pretextual in order to defeat summaryjudgment. Id. Under a proper mixed-motive analysis, the plaintiff does not haveto show that the defendant’s profferedexplanations are pretextual in order to pre-vail. Rather, she can allow that thedefendant’s explanations may be true, butshow that in addition the defendant alsoacted out of a discriminatory motive.

The Griffith court offered several con-voluted and unpersuasive reasons for itsruling. First, the court argued that “[a]tthe summary judgment stage, the issue iswhether the plaintiff has sufficient evi-dence that unlawful discrimination was amotivating factor in the defendant’sadverse employment action. If so, the pres-ence of additional legitimate motives willnot entitle the defendant to summary judg-ment.” While that statement is music tothe ears of plaintiffs’ lawyers, it is mean-ingless in practice, because the Griffithcourt invoked it as support for its conclu-sion that a plaintiff must prove pretext todefeat summary judgment. Id.

Second, the Griffith court argued that“Desert Palace did not forecast a seachange in the [Supreme] Court’s think-ing” because in a subsequent opinion,Raytheon Co. v. Hernandez, 540 U.S.44, 49 (2003), the Supreme Court“approved use of the McDonnell Dou-glas analysis at the summary judgmentstage.” Griffith at 735. But in Raytheon,no multiple, let alone mixed, motive analy-sis was at issue at all; furthermore,Raytheon was decided under the Amer-icans with Disabilities Act, not Title VII.

Third, the Griffith court tap-dancedaround the meaning of “direct evidence”:

Direct evidence in this context isnot the converse of circumstantialevidence, as many seem to assume.Rather, … ’direct’ refers to thecausal strength of the proof, notwhether it is ’circumstantial’ evi-dence. A plaintiff with strong(direct) evidence that illegal dis-crimination motivated theemployer’s adverse action does notneed the three-part McDonnellDouglas analysis to get to the jury,regardless of whether his strongevidence is circumstantial. But ifthe plaintiff lacks evidence thatclearly points to the presence of anillegal motive, he must avoid summary judgment by creating the requisite inference of unlaw-ful discrimination through theMcDonnell Douglas analysis,including sufficient evidence ofpretext.

Griffith at 736 (emphasis added). Thispassage ignores the Supreme Court’s hold-ing in Desert Palace that “no specialevidentiary showing is required” to trig-ger the mixed-motive analysis and thusavoid the requirement to prove pretext.Desert Palace at 99.

Finally, some of the circuits that haveignored or unreasonably limited DesertPalace in some opinions have followed itin others. See, e.g., White v. BurlingtonNorthern & Santa Fe R. Co., 364 F.3d789, 811 (6th Cir. 2004) (Desert Palaceheld “that a direct evidence requirement isinconsistent with the text of” Section2000e-2(m)); Strate v. Midwest Bank-

DESERT PALACE, from page 5

See DESERT PALACE, page 22

6

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Lawyers who represent employeeshave a lot to remember. To make even apreliminary assessment of a potentialclaim’s viability, we must have quite afew facts at our fingertips: the minimumnumber of employees an employer musthave before the Family Medical LeaveAct applies; the cap on punitive damagesunder Title VII for an employer with 150employees; the statute of limitations forfiling a lawsuit under the New York StateHuman Rights Law; which anti-discrim-ination laws provide for compensatorydamages or attorneys’ fees and whichdon’t; and on and on.

This article is a concise guide to theinformation you need to make an initialevaluation of some of the most commonemployee claims, with an emphasis onprivate employers in New York State andthe Second Circuit.

§ 1983—Civil Action forDeprivation of Rights

The federal Civil Rights Act1 (“Section1983”) creates a right of action against aperson who, under color of state law, cus-tom, or usage, deprives an individual of“any rights, privileges, or immunitiessecured by the Constitution and laws.”2

Section 1983 has two purposes. First,it aims to provide federal remedies wherestate laws and remedies are inadequateor unavailable in practice. Section 1983gives plaintiffs access to federal courtswhen state laws do not protect their Four-teenth Amendment rights.3 Second,Section 1983 aims to “deter state actorsfrom using the badge of their authorityto deprive individuals of their federallyguaranteed rights and to provide relief tovictims if such deterrence fails.” 4 Sec-tion 1983 provides remedies for allviolations of civil rights secured by the

Constitution, not just class-based dis-crimination.5

Elements of a Claim. In order to state aclaim for deprivation of rights under Sec-tion 1983, a plaintiff must show that “(1)the defendant acted under color of statelaw; and (2) as a result of the defendant’sactions, the plaintiff suffered a denial ofher federal statutory rights, or her con-stitutional rights or privileges.” Courtsuse a “fair attribution test” to determinewhether a plaintiff has satisfied the firstelement above: “[f]irst, the deprivationmust be caused by the exercise of someright or privilege created by the State orby a rule of conduct imposed by the stateor by a person for whom the State isresponsible. … Second, the party chargedwith the deprivation must be a personwho may fairly be said to be a stateactor.”7

Limitations. Section 1983 does not haveits own statute of limitations; instead,courts apply the statute of limitationsapplicable to personal injury claims inthe relevant state.8 There are no require-ments for size of employer, or length ofemployment. There is no administrativeexhaustion requirement.

Damages. In addition to back pay andfront pay, plaintiffs can recover compen-satory damages for emotional distressunder Section 1983.9 Compensatory dam-ages may not include an amount assessingthe abstract monetary value or importanceof the constitutional right which had beenviolated.10 Liquidated damages are notavailable. Courts award punitive dam-ages only when the defendant acted withmalice or “callous indifference” to theplaintiff’s federally protected rights.11

Courts have discretion to award reason-able attorneys’ fees and costs.12 Equitablerelief is available under Section 1983,which gives trial courts discretion to fash-ion remedies to make plaintiffs whole,that is, to recreate the employment con-ditions and relationships that would have

existed in the absence of intentional dis-crimination.13

§ 1981—Equal Rights Under theLaw

The federal Civil Rights Act14 (“Sec-tion 1981”) prohibits discrimination inthe making and enforcing of contracts.Courts have applied it to cases involvingcontracts for private employment wherea particular employment decision wasracially motivated.15

Elements of a Claim. To establish aprima facie case under Section 1981, aplaintiff must show: (1) membership in aracial minority; (2) an intent16 to discrim-inate on the basis of race on the part of thedefendant; and (3) discrimination inter-fering with an activity enumerated in thestatute (i.e., making and enforcing con-tracts, suing or being a party to a lawsuit,giving evidence, or receiving “the full andequal benefit of all laws and proceedingsfor the security of persons and proper-ty”17).18 A plaintiff who has made out aprima facie case under Title VII has alsodone so under Section 1981, as long as theprima facie case includes a showing ofintent to discriminate.19

Limitations. The statute of limitationsfor a Section 1981 claim is determinedby the statute of limitations applicable topersonal injury claims in the relevantstate20—unless the claim was made pos-sible by the 1991 Civil Rights Act’samendment of Section 1981,21 in whichcase the statute of limitations is fouryears.22 The statute of limitations is nottolled by the filing of a claim under TitleVII.23 There are no minimum require-ments for the size of an employer or thelength of employment, and there is noadministrative exhaustion requirement.24

Damages. A plaintiff can recover dam-ages under both Title VII and § 1981.25

A plaintiff who establishes a cause ofaction under both Title VII and Section

What Every NELA/NY Lawyer Should Know: A Guide to the Statutes We Use Every Dayby Piper Hoffman, Esq. and Katherine Olshansky*

See STATUTES, next page

* Piper Hoffman is an associate at Outten & Gold-en LLP (www.outtengolden.com). You can reachher at 212-245-1000 or ph@outtengolden.com.Katherine Olshansky is a law clerk at Outten &Golden LLP and a third-year law student at NewYork Law School.

8

1981 is entitled to equitable and legalrelief (compensatory and punitive dam-ages) stemming from both actions.26

Compensatory damages are availableunder Section 1981.27 Liquidated dam-ages are not. Punitive damages areavailable only if the defendant acted with“malice, an evil motive, or recklessness orcallous indifference” to the plaintiff’s fed-erally protected rights.28 Courts havediscretion to award “reasonable” attor-neys’ fees to the prevailing party (otherthan the United States).29

Title VII of the Civil Rights Act of1964

Title VII of the Civil Rights Act of1964 (“Title VII”)30 prohibits discrimi-nation based on sex, race, color, religion,or national origin in hiring, firing, or com-pensation, in terms, conditions, orprivileges of employment, and in limit-ing, segregating, or classifying employeesor applicants in an adverse way.31

Limitations. Title VII applies only toemployers engaged in an “industry affect-ing commerce”32 and employ fifteen ormore people “for each working day ineach of twenty or more calendar weeks inthe current or preceding calendar year.”33

Title VII requires aggrieved employ-ees to exhaust their administrativeremedies before beginning litigation byfiling a charge with the Equal Employ-ment Opportunity Commission(“EEOC”), which investigates the chargeand determines whether there is reason-able cause to believe that the charge istrue.34 An aggrieved employee must filehis charge with the EEOC within 300days of the adverse employment actionin deferral states,35 and within 180 daysin non-deferral states. Once the employ-ee receives a Notice of Right to Sue fromthe EEOC, he has 90 days within whichto file a complaint in court.36

Damages. Back pay and front pay areavailable under Title VII.37 Liquidateddamages are not available under Title VII.Courts have discretion to award reason-able attorneys’ fees.38 Courts may fashionappropriate equitable relief for violationsof Title VII.39

Title VII provides for compensatorydamages for future pecuniary losses, emo-tional pain, suffering, inconvenience,mental anguish, loss of enjoyment of life,and other non-pecuniary losses.40 TitleVII allows for punitive damages if theplaintiff can show that the defendant actedwith malice or reckless indifference.41 ButTitle VII caps the sum of compensatoryand punitive damages on a sliding scalebased on the maximum number ofemployees the employer had in each of20 or more calendar weeks in the currentor preceding calendar year: for employerswith 15 to 100 employees, the maximumcombined amount of compensatory andpunitive damages is $50,000; for employ-ers with 101 to 200 employees, the capis $100,000; 201 to 500 employees,200,000; over 500 employees, $300,000.42

Americans with Disabilities ActThe federal Americans with Disabilities

Act of 1990 (“ADA”)43 protects disabledindividuals from discrimination in private,state government, and local governmentemployment, as well as by employmentagencies and labor organizations. TheADA prohibits employers from discrim-inating against qualified individuals withdisabilities in the terms and conditions oftheir employment, and requires coveredentities to make “reasonable accommo-dations” for individuals with disabilities.44

The ADA adopted all the “powers, reme-dies, and procedures” of Title VII.45

Elements of a Claim. An individualbringing a claim under the ADA mustshow that: “(1) his employer is subject tothe ADA; (2) he was disabled within themeaning of the ADA; (3) he was other-wise qualified to perform the essentialfunctions of his job, with or without rea-sonable accommodation; and (4) hesuffered adverse employment actionbecause of his disability.”46 To show thathe is disabled within the meaning of theADA, a plaintiff must show: (1) a phys-ical or mental impairment thatsubstantially limits one or more major lifeactivities; (2) a record of such an impair-ment; or (3) that he was regarded ashaving such an impairment.47

Limitations. The ADA has the samejurisdictional requirements as Title VII.It applies to employers with at least 1548

employees on each working day in eachof twenty or more calendar weeks in thecurrent or preceding calendar year. Anaggrieved individual must exhaust heradministrative remedies at the EEOCbefore she can file a complaint in court.49

Damages. Courts look to Title VII caselaw for guidance on ADA remedies.Courts have discretion to provide reliefincluding reinstatement, back pay, andfront pay.50

Compensatory damages are availableunder the ADAfor future pecuniary losses,51

emotional pain, suffering, inconvenience,mental anguish, loss of enjoyment of life,and other non-pecuniary losses, unlessthe employer “demonstrates good faithefforts” to make effective accommoda-tions in consultation with the disabledemployee.52 Punitive damages are avail-able to plaintiffs who can show that thedefendant acted with malice or recklessindifference, in accordance with Title VII53

rules. Liquidated damages are not avail-able under the ADA. Courts may awardreasonable attorneys’ fees as under TitleVII. Attorneys’ fees are also available foradministrative proceedings.54

Age Discrimination in Employment Act

The Age Discrimination in Employ-ment Act of 1967 (“ADEA”) forbidsemployment discrimination against peo-ple over forty years old on the basis oftheir age.55 There are a few exceptions toADEA, including one that permitsemployers to force employees to retire atage 65 if they have worked in a “bonafide executive” or “high policymakingposition” for the prior two years andwould receive an annual retirement ben-efit of at least $44,000.56

Limitations. ADEA applies only toemployers with at least 20 employeesworking on each working day in at leasttwenty calendar weeks in the current orpreceding calendar year.57 ADEArequiresan aggrieved individual to file an admin-istrative complaint with the EEOC within300 days of the violation and at least 60

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days before filing a lawsuit, but does notrequire the individual to obtain a right-to-sue letter from the EEOC before filingsuit.58 Unlike Title VII, “ADEA permitsconcurrent rather than sequential stateand federal administrative jurisdiction”because “the delay inherent in sequentialjurisdiction is particularly prejudicial tothe rights of older citizens to whom, bydefinition, relatively few productive yearsare left.”59

Damages. ADEA provides for legal andequitable relief in the form of employ-ment, reinstatement, promotion, back pay,interest on back pay, front pay, or otherrelief the court deems appropriate.60 Liq-uidated damages, in the amount of theaward for back pay and benefits,61 areavailable where the violation was “will-ful”62 and the defendant has no good faithdefense.63 Compensatory damages forpain and suffering or emotional distressare not available under ADEA, nor arepunitive damages.64

Family and Medical Leave Act The Family and Medical Leave Act of

1933 (“FMLA”)65 guarantees employeesthe right to take temporary unpaid leaveunder certain circumstances. It requirescovered employers to grant eligibleemployees twelve weeks of consecutiveor intermittent leave during any twelve-month period because of (1) the birth ofa child; (2) the placement of a child foradoption or fostering; (3) the serioushealth condition of a spouse, child, or par-ent; or (4) a serious health condition thatmakes the employee unable to performthe functions of her position.66 When anemployee returns from FMLA leave, heremployer must restore her to her formerjob or a similar one with the same salaryand benefits.67

Limitations. The FMLA covers onlyemployers with at least 50 employees foreach working day during each of the 20or more workweeks in the current or pre-ceding calendar year.68 The FMLAappliesonly to employees who have worked forthe employer for at least 12 months, andwho have worked at least 1,250 hoursduring the 12-month period immediately

preceding the leave.69 The FMLA doesnot require administrative exhaustion, soan aggrieved employee can take his claimdirectly to court. The employee must filehis complaint within two years of the vio-lation, or three years if the violation waswillful.70

Damages. A prevailing plaintiff canrecover damages for lost wages, employ-ment benefits, or other compensation,plus interest.71 If the violation of theFMLA did not cause the plaintiff to loseany compensation, she can recover dam-ages for other monetary losses, up to asum equal to 12 weeks of her wages plusinterest.72 Liquidated damages equal tothe amount of monetary damages areavailable, but the court can reduce theamount of liquidated damages if theemployer can show that it acted in goodfaith and with reasonable grounds forbelieving it was not violating the FMLA.73

A prevailing plaintiff is entitled to rea-sonable attorneys’ fees and other costs.74

Punitive damages are not available. TheFMLA empowers courts to grant equi-table relief including employment,reinstatement, and promotion.75

Equal Pay ActThe Equal Pay Act (“EPA”)76 requires

employers to pay women and men thesame amount for substantially equalwork.

Elements of a Claim. To show that anemployer has violated the standards ofthe EPA, an employee must show that anemployer pays a male and a femaleemployee different wages on the basis ofsex, even though they perform equal workin jobs that require “equal skill, effort,and responsibility, and which are performed under similar working condi-tions.”77 Employers may pay men andwomen different wages for substantiallyequal work if the difference is based on “amerit system,” “a seniority system,” a“system which measures earnings byquantity or quality of production,” or “adifferential based on any other factor otherthan sex.”78 The EPA prohibits retaliationagainst employees for filing complaintsabout EPAviolations or testifying in EPA-related proceedings.79

Limitations. The EPA applies to allemployers engaged in commerce or pro-ducing goods for commerce with anannual gross volume of business of atleast $500,000, and to employers engagedin operating a hospital, school, or certainother institutions.80

The Fair Labor Standards Act81 sup-plies the limitations that apply to the EPA.There is no administrative exhaustionrequirement under the EPA.82 A plaintiffmust file a complaint under the EPAwith-in two years of the violation, or withinthree years if the violation was willful.83

Damages. Back pay and front pay areavailable up to the amount of the wagedisparity.84 Compensatory damages foremotional distress are not available. Liq-uidated damages are available in anamount equal to the unpaid wages, butthe court can deny liquidated damages ifthe employer shows that it acted in goodfaith and with reasonable grounds tobelieve it was not violating the EPA.85

Punitive damages are not available.86

Attorneys’ fees are available.87 Courtsmay award appropriate equitable relief,including employment, reinstatement andpromotion. The EEOC can obtain injunc-tive relief, but individuals cannot.88

New York State Equal Pay LawNew York State’s Equal Pay Law

(“EPL”)89 is “virtually identical” to thefederal Equal Pay Act.90 It requires employ-ers to pay female and male employees thesame amount for “equal work” in jobsthat require “equal skill, effort and respon-sibility, and which [are] performed undersimilar working conditions.”91 The jobscompared must be “substantially” thesame.92 Wage differentials between thesexes pass muster under the EPL if theyare based on a “seniority system; a meritsystem; a system which measures earn-ings by quantity or quality of production;or any other factor other than sex.”93

Limitations. A plaintiff must file a com-plaint within six years of the violation.94

There are no requirements for the size ofthe employer or for length of employ-ment.95 The EPL does not apply togovernmental employers.96

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Damages. Damages may include “fullwages, benefits, and wage supple-ments.”97 Liquidated damages areavailable in the amount of 25% of thewages due to the plaintiff.98 Reasonableattorneys’ fees and costs are available.99

New York State Human RightsLaw

The New York State Human RightsLaw (“NYSHRL”)100 prohibits employ-ment discrimination on the basis of“age,101 race, creed, color, national ori-gin, sexual orientation, military status,sex, disability, predisposing genetic char-acteristics, or marital status.”102

Limitations. An aggrieved employee caneither file an administrative charge withthe State Division of Human Rights(“SDHR”) within one year of the viola-tion,103 or file a civil suit in state courtwithin three years of the violation.104 TheNYSHRL applies only to employers withfour or more employees.105

Damages. Prevailing complainants mayrecover lost back pay with interest.106

Compensatory damages are available formental anguish.107 Equitable relief is avail-able in the form of hiring, reinstatement,or upgrading.108 Punitive damages, attor-neys’ fees, and costs are not available.109

New York City Human Rights LawThe New York City Human Rights

Law (“NYCHRL”)110 prohibits employ-ment discrimination inside New YorkCity on the basis of “the actual or per-ceived age, race, creed, color, nationalorigin, gender, disability, marital status,sexual orientation or alienage or citizen-ship status of any person.”

Limitations. The NYCHRL applies onlyto employers with at least four employ-ees.111 An aggrieved individual may eitherfile an administrative charge with theNew York City Commission on HumanRight (“NYCCHR”) within one year ofthe violation, or file a civil suit withinthree years of the violation.112 Before fil-ing a lawsuit under NYCHRL, theplaintiff must serve a copy of the com-plaint upon the NYCCHR.113

Damages. In addition to back pay and

front pay, compensatory and punitivedamages are available with no caps.114

Attorneys’ fees and costs are available.115

Civil penalties of up to $100,000 (inadministrative proceedings only) areavailable for non-compliance with theCommission’s order.116 Equitable reliefis available.

Footnotes1 42 U.S.C. § 1983.2 Id.3 District of Columbia v. Carter, 409 U.S. 418,

423 (1973).4 Wyatt v. Cole, 504 U.S. 158, 161 (1992); see

also Monroe v. Pape, 365 U.S. 167, 180(1961).

5 Blake v. Delaware City, 441 F. Supp. 1189,1199 (D. Del. 1977).

6 Annis v. County of Westchester, 136 F.3d239, 245 (2d Cir. 1998).

7 Lugar v. Edmondson Oil Co., Inc., 457 U.S.922, 937, 102 S.Ct. 2744, 2753-2754 (1982).

8 The statute of limitations for Section 1983claims in New York is three years. See N.Y.C.P.L.R. § 214 (McKinney 2005).

9 Carey v. Piphus, 435 U.S. 247, 264 (1978).10 See Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299, 304-313 (1986).11 Smith v. Wade, 461 U.S. 30, 56 (1983). 12 42 U.S.C. § 1988(b).13 See Gurmankin v. Costanzo, 626 F.2d 1115,

1118-1124 (3rd Cir. 1980).14 42 U.S.C. § 1981.15 See, e.g., Patterson v. County of Oneida, 375

F.3d 206 (2d Cir. 2004).16 Disparate impact claims are not viable under

Section 1981. See, e.g., Gay v. Waiters’ andDairy Lunchmen’s Union, 694 F.2d 531, 537(9th Cir. 1982) (“a prima facie case of racialdiscrimination in cases brought under section1981 … requires proof of intentional discrim-ination”).

17 42 U.S.C. § 1981(a).18 See, e.g., Mian v. Donaldson, Lufkin & Jen-

rette Securities Corp., 7 F.3d 1085, 1087 (2dCir. 1993).

19 Miller v. Fairchild Indus., Inc., 797 F.2d 727,733 (9th Cir. 1986) (“A plaintiff who raisesgenuine factual issues regarding disparate treat-ment under Title VII presents triable claimunder § 1981”).

20 In New York state, the statute of limitations forSection 1981 claims is three years. See Bembryv. Darrow, 7 F. App’x 33, 36 (2d Cir. 2001).

21 The Civil Rights Act of 1991 added subsec-tions (b) and (c) of Section 1981. See Pub. L.102-166. Arguably, the only 1981 claims thatare not subject to the four-year statute of limi-tations are discriminatory hire claims. SeeRivers v. Roadway Exp., Inc., 511 U.S. 298,302 (1994).

22 Jones v. R.R. Donnelley & Sons Co., 541 U.S.369 (2004). The Civil Rights Act of 1991 added

subsections (b) and (c) of Section 1981. SeePub. L. 102-166.

23 Since Section 1981 claims are distinct fromTitle VII claims, the statute of limitations applic-able to an action under § 1981 is not tolledpending disposition of a Title VII claim aris-ing from the same facts. See Burns v. UnionPac. R.R., 564 F.2d 20, 21 (8th Cir. 1977);Fuentes v. City of New York Human Res.Admin., 830 F.Supp. 786, 789 (S.D.N.Y. 1993).

24 See Randolph v. IMBS, Inc., 368 F.3d 726,732 (7th Cir. 2004); Wilson v. FairchildRepublic Co., Inc., 143 F.3d 733, 739 (2d Cir.1998).

25 See Hernandez v. Hill Country Tel. Coop.,Inc., 849 F.2d 139, 143 (5th Cir. 1988) (TitleVII and § 1981 are overlapping but indepen-dent remedies for racial discrimination).

26 See Johnson v. Railway Express Agency, Inc.,421 U.S. 454, 459-60, 461 (1975).

27 Id. at 460.28 See e.g., Stephens v. South Atlantic Canners,

Inc., 848 F.2d 484, 489 (4th Cir. 1988), cert.denied, 488 U.S. 996 (1988).

29 42 U.S.C. § 1988(b). 30 42 U.S.C. § 2000e et seq., as amended.31 42 U.S.C. § 2000e-2(a)(1)-(2).32 “The term ’industry affecting commerce’means

any activity, business, or industry in commerceor in which a labor dispute would hinder orobstruct commerce or the free flow of com-merce and includes any activity or industry’affecting commerce’ within the meaning ofthe Labor Management Reporting and Disclo-sure Act of 1959, and further includes anygovernmental industry business, or activity.”42 U.S.C. § 2000e(h). Title VII does not applyto private membership clubs which are exemptfrom taxation under Section 501(c) of the Inter-nal Revenue Code of 1954, Indian tribes, or theUnited States and District of Columbia gov-ernments. 42 U.S.C. § 2000e(b).

33 42 U.S.C. § 2000e(b). “Regular part-timeemployees” are counted for jurisdictional pur-poses. Thurber v. Jack Reilly’s, Inc., 717 F.2d633, 634-35 (1st Cir. 1983).

34 42 U.S.C. § 2000e-5(b).35 42 U.S.C. § 2000e-5(e)(1). A deferral state is

a state which has an agency empowered toprocess discrimination claims that has beendesignated as a Fair Employment PracticesAgency (“FEPA”).

36 This time period is subject to equitable tolling.Zipes v. Trans World Airlines, Inc., 455 U.S.385, 393 (1982).

37 See, e.g., Robinson v. Metro-North Com-muter R.R. Co., 267 F.3d 147, 157 (2d Cir.2001).

38 42 U.S.C. § 2000e-5(k).39 42 U.S.C. § 2000e-5(g).40 See 42 U.S.C. § 1981a(a)(1)&(b)(2); EEOC

Enforcement Guidance N-915.002 (EEOCCompliance Manual Section 603 App’x).

41 42 U.S.C. § 1981a(a)(1), (b)(1). Punitive dam-ages are not available against the government.Id. at (b)(1).

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Use Of Expert Medical Testimony In A Disability Caseby Ronald Dunn, Gleason, Dunn, Walsh & O’Shea

Many of us are asked to provide adviceto employees concerning their on- or off-the-job injuries. Such employees may seekto obtain compensation from theiremployer. They may seek compensationfrom third parties through specializedstatutes or employee benefit plans thatcompensate employees for disabilities.They may wish to press a right to return towork in some capacity. An employee’sparticular circumstances may give rise toa traditional Workers Compensation case,a disability retirement case, or a case underany of numerous statutes and other sourcesthat provide for employee rights in thewake of injuries (including benefits, com-pensation, or right to a light-dutyassignment or other reasonable accom-modation).

In such cases, medical evidence willoften be critical to whether the employ-ee’s case will succeed or fail. Questionsfrequently arise about whether the eventgiving rise to the claim either temporari-ly or permanently incapacitated theemployee from performing his or herduties, or whether an undisputed injurywas actually causally related to an eventat work. As to the latter, the general diffi-culties of proof of causation may becomplicated by questions related towhether the employee had some preex-isting condition. The employee mustadduce proof about the extent of an injuryand its effects.

We have found that the proper presen-tation of medical proof can address all ofthese issues in a “winning way”. Here areour tips, most of which you may alreadyknow, but some of which you may haveforgotten.

1. Get the Medical RecordsFirst, it is critically important that you

obtain all medical records directly fromall of your client’s medical providers. Donot assume that the client has completerecords. We always ask our clients to com-plete HIPAA-compliant medical releaseforms in our favor in all cases. We use theform approved by the NYS Office ofCourt Administration and the New York

State Health Department. It can be down-loaded at nycourts.gov/ forms/hipaa_fillable.pdf. That form allows youto obtain all medical records, not just thosethat the client thinks are relevant. The rea-son for this is simple: Most patients neversee their medical records, and they mayhave no idea what is in them. Doctors fre-quently include in the medical recordsdetails of prior health histories and otherinformation which can be quite helpful inproving either that the client did not havea prior existing condition or that a priorexisting condition was stable prior to thelatest work-related incident that the pre-existing condition exacerbated. Theexpense of getting the records is easilywarranted in almost all instances.

2. Get the Medical Records thatthe Employer Has

Cooperate with the employer in themutual exchange of all medical records.There is really no advantage in not pro-viding access to medical records. Thecourts almost universally hold that wherean employee is applying for an enhancedbenefit because of a job-related injury,that employee’s cooperation in the inves-tigation is required as a condition ofreceipt of the benefits. See generally Sch-enectady PEA v. PER, 85 N.Y.2d 480(1995).

Also, you can almost always get anagreement with the employer to share anymedical records that it has received. UnderN.Y.S. Public Health Law § 18, upon writ-ten request, all patients always have theright to their own records. As a practicalmatter, that statutory right can usually beleveraged into an agreement to mutuallyexchange all records. Plus a simple con-fidentiality agreement overcomes mostprivacy concerns except in the rarest ofcases. There is no good reason for beingsurprised at a hearing by a medical recordthat you have not seen earlier. Full dis-closure by all parties of all medical recordsin advance of the hearing saves you fromthat surprise.

3. Bolster Patient History withTestimony from Friends, Relativesand Knowledgeable Associates

It is easy to get taken in by the won-derful new advances in diagnosticmedicine. MRIs are able to show physicalconditions that at one time were simplynot possible to show, such as injuries tothe cartilage and tears and rips in soft tis-sue. Some kinds of high-tech exams caneven show inflammation in soft tissue.Challenging issues of proof arise in caseswhere there is only soft tissue damage andyour client suffers from debilitating painnot revealed with the new wave of hightech tests. Employers may use the lack ofa “high tech” test result in arguing thatthere is no injury at all.

In such circumstances, we frequentlyuse functional capacity examinations.These are tests performed by trained ther-apists that measure a patient’s ability toperform certain discrete tasks such as lift-ing weights. These tests are typically usedto measure the limits of a patient’s abili-ty to work, i.e., placing weight restrictionson lifting. But we often use these to helpprove the underlying injury as well.Although it is possible to fake such anexamination, there are reliability tests thatcan be used to minimize that risk. Assum-ing that you are willing to lay the properfoundation for the test and go through thesteps of ensuring that the test administra-tor is well trained, these examinations canfrequently show the debilitating effects ofpain in a quantifiable way when there is noconcrete traditional diagnostic medicaltest to demonstrate the injury or damage.This is particularly true in soft tissue cases,including cases involving chronic diseasessuch as fibromyalgia.

The courts have specifically ruled thata functional capacity examination canform the basis for a determination that aparticular employee is or is not disabled.See generally Sewell v. Kaplan, 298A.D.2d 840 (4th Dep’t 2001); Fleiss v.South Buffalo R. Co., 291 A.D.2d 848(4th Dep’t 2002).

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4. Proving the Difference betweenDegenerative Disease Caused byChronic Events and Acute Events

Frequently, the medical case boils downto determining the precise date of the onsetof symptoms. Even when a diagnosticexam proves definitively that there is adisabling physical condition, that does notnecessarily mean that the disabling con-dition was caused by the discrete event atissue. In such an instance, most medicalproviders will tell you that patient histo-ry is critical to determining with anydegree of certainty precisely what causedthe accident or injury. Obviously, theclient’s testimony is critical to this indetailing the precise onset of the symp-toms. Family members can also be used tocorroborate this. The more corroboratingfacts you can introduce, the more likelyit is that you will be able to overcome anysuggestion that the patient has the mostto gain by either exaggerating or lyingabout the onset of certain symptoms. Suchsuggestions are the traditional means ofdefeating these applications.

That is particularly true where a dis-ease or condition can be caused by either

a chronic condition simply brought on byage or an acute event such as a trauma.Most medical professionals will tell youthat arthritis or stenosis (a narrowing ofthe casing around the spinal chord) canbe brought on by either a degenerativecondition that is chronic, i.e., simply “timeon the planet,” or an acute traumatic event.In the former case, the degenerative con-dition does take a period of months for anonset of symptoms. Thus, it is critical thatthe expert medical witness clearly testifyhow he or she has come to the conclusionthat the event was the acute trauma ratherthan chronic degeneration.

5. Exacerbation of PreexistingConditions

The cases interpreting specializedwork-related disability statutes hold thatthe exacerbation of a preexisting condi-tion independently qualifies an employeefor the benefit. Matter of Thomas v.Regan, 125 A.D.2d 127 (3rd Dep’t 1987);Matter of Sanchez v. NYS and LocalPolice Ret. Syst., 208 A.D.2d 1027, 1028(3rd Dep’t 1994). This inquiry requiresyou to develop testimony from the med-ical provider that your client’s conditionwas stable prior to the reinjury.

6. Properly Cross the Employer’sExpert

Finally, you have to properly crossexamine the employer’s expert. Almostalways, the employer’s “independentexpert” has seen the plaintiff once in whatcan only be described as an adversarialexamination conducted in a quick visit.

In contrast, the plaintiff’s treating physi-cian has met with the plaintiff on multipleoccasions. This is a critical difference ina case that turns on patient history (i.e.,the patient’s report of symptoms). Invari-ably, the employer’s expert will discountpatient history. That same expert cannotdeny that from Day One in medical schoolall doctors are taught that patient historyand carefully listening to what the patientis reporting are critical to good medicine.That makes for devastatingly effectivecross examination.

The cross of the employer’s expert alsorequires complete access to your client’sprior medical history. This is where thevalue of a complete medical history paysoff. Invariably, prior medical records willshow that the “independent expert” sim-ply did not have all the facts. Thatundercuts the testimony and maximizessuccess. n

TESTIMONY, from page 11

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Anne’s Squibsby Anne Golden

Note: Readers are invited to send us deci-sions in their cases, or in recent casesthey come across, that are of wideenough interest to be discussed in thesepages. Send them directly to:

Anne GoldenOutten & Golden LLP3 Park AveNew York, NY 10016Fax: (212) 977-4005E-mail: ag@outtengolden.com

Further note: Of course, these squibsare by no means exhaustive, nor shouldyou rely upon them as a substitute fordoing your own research and actuallyreading the cases. Thanks to NatalieHolder-Winfield, an associate with Outten & Golden LLP, for help in thepreparation of these squibs.

AGE DISCRIMINATION

Statutory Rights and Collective Bargaining Agreements

The S.D.N.Y. recently decided that anindividual employee can determine in whatforum he will vindicate certain statutoryrights, including those under the ADEA.An employer moved to dismiss an employ-ee’s ADEA claim on the ground that thecourt lacked subject matter jurisdictionover the matter because the grievance andarbitration procedure of the CBA provid-ed his exclusive remedy. After closelyanalyzing the different facts in the SupremeCourt’s decisions Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974),Barrentine v. Arkansas-Best FreightSystem, Inc., 450 U.S. 728 (1981), andGilmer v. Interstate/Johnson LaneCorp., 500 U.S. 20 (1991), the court decid-ed that while an individual mayprospectively waive his own statutory rightto a judicial forum to litigate an ADEAclaim, his union may not do so for him.Beljakovic v. Mehlohn Properties, 2005WL 2709174 (S.D.N.Y. Oct. 17, 2005).

ATTORNEYS’ FEES

Fees for Prevailing in NYSDHRA bus company manager was dis-

charged in 1987, dual-filed a complaintwith the NYSDHR and the EEOC, and,12 years later, received a favorable deci-sion from the SDHR. After another threeyears, she got her prejudgment interest.Plaintiff then filed a federal complaintseeking attorneys’ fees under Title VIIonly, having received her back pay in theSDHR and state court action. (Of course,the NYSHRL does not provide for attor-neys’ fees even to a prevailing plaintiff.)The district court (Joanna Seybert,E.D.N.Y.) dismissed the action under Fed.R. Civ. P. 12(b)(1) (subject matter juris-diction). It found that (1) the plaintiff wasnot a “prevailing party” under Title VII,(2) NY Gaslight Club, Inc. v. Carey, 447U.S. 54 (1980), was not controlling, (3)federal courts do not allow suits solely forattorneys’ fees, and (4) the plaintiff hadelected her remedy when she filed withthe SDHR. The Second Circuit Court ofAppeals disagreed, holding that the plain-tiff should be permitted to amend hercomplaint to address its jurisdictional defi-ciency, even though she had “made acolorable pleading of subject matter juris-diction.” The decision was written byJudge James Oakes and concurred in byJudge Guido Calabrese, but Judge AmalyaKearse concurred “dubitante” on theground that Carey was distinguishableand that res judicata applied to precludeplaintiff’s federal suit. Aurecchione v.Schoolman Transp. Sys., Inc., 426 F.3d635 (2d Cir. Oct. 17, 2005).

Lodestar CalculationPlaintiffs’ attorneys outside of New

York City have always had trouble get-ting courts to award them adequatehourly rates. After a jury verdict on aclaim alleging failure to pay overtimepay in violation of the Fair Labor Stan-dards Act, the plaintiffs moved for feesand costs, as well as for reversal of thejury’s finding that the employer had actedin good faith and that therefore liquidat-ed damages were not awarded. MagistrateJudge Lisa Margaret Smith (S.D.N.Y.)granted NELA/NY member Dan Get-man an hourly rate of $375 (twenty

years’ experience) and another lawyerwho worked on the case an hourly rateof $300 (nine years’ experience). Thecourt also granted fees for the fourteenhours spent preparing the fee application,in accordance with established case law.With respect to the Rule 59 post-trialrequest for relief based upon alleged “goodfaith,” the magistrate judge found that therehad been no evidence adduced at trial fromwhich a reasonable jury could have foundgood faith. This fact, coupled with the“strong presumption in favor of awardingdouble damages,” impelled the court toset aside the jury verdict concerning thedefendant’s supposed good faith.

Congratulations to Dan Getman, whorepresented the plaintiffs. Gjurovich v.Emmanuel’s Marketplace, Inc., — F.Supp. 2d — (S.D.N.Y. Sept. 30, 2005).

CONTRACT

Employee ManualAn employee who alleges a breach of

contract claim based on an employee man-ual finds a more hospitable audience infederal court than in state court. A man-ager at a bank who reported improperloans authorized by his supervisor saidthat he had relied upon the bank’s “speak-up policy,” instructing “staff who havegenuine suspicions about wrongdoing tospeak up” and assuring them that “[a]nyreport which you make will be listenedto, investigated and treated in confidence.Victimisation of anyone who comes for-ward will not be tolerated. … You will notbe blamed for speaking up.” The plaintiffemployee alleged that after he reportedthe improper loans, he was mistreated andeventually fired. The district court (LauraTaylor Swain, S.D.N.Y.) dismissed theimplied contract. The court of appeals,vacating and remanding in a summaryorder, found that the bank’s “speak-uppolicy is sufficiently committal under NewYork law to raise an issue of fact” and thatthe plaintiff had alleged sufficient relianceupon the promise to survive summary

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judgment. Loli v. Standard CharteredBank, 2005 WL 3263831 (2d Cir. Nov.30, 2005) (summary order not constitut-ing precedential authority).

DAMAGES

Inadequacy of Statutory CapsIn a June 2005 opinion, Magistrate

Judge James Orenstein (E.D.N.Y.) recog-nized that the $300,000 cap on punitivedamages under the ADA(and Title VII) ismeaningless to “commercial titans” suchas Wal-Mart. An employee with cerebralpalsy sued Wal-Mart for subjecting himto adverse employment actions, hostilework environment, intentional inflictionof emotional distress, and constructive dis-charge, as well as negligence in hiring,supervising, and retaining employees inviolation of the ADA and the New YorkHuman Rights Law. The jury awardedplaintiff $5 million in punitive damages,$2.5 million in compensatory damages,and $9,114 in economic damages basedon his loss of back pay. Although the courtreduced the entire damages award to com-port with the statutory caps as a matter oflaw, Magistrate Judge Orenstein took theopportunity to opine about the injustice ofstatutory caps as they relate to companiessuch as Wal-Mart. He wrote, “[I]t tookWal-Mart only 37 seconds last year toachieve sales equal to the $300,000 it mustnow pay to [plaintiff] in punitive damages.There is no meaningful sense in whichsuch an award can be considered punish-ment.” Brady v. Wal-Mart Stores, Inc.,Slip Copy, 2005 WL 1521407 (E.D.N.Y.June 21, 2005).

Liquidated Damages Apply toMunicipalities & State Entities

In a case of first impression, the Sec-ond Circuit Court of Appeals held thatgovernment employers are liable for liq-uidated damages under the ADEA. Twoemployees, ages 59 and 62, alleged thatthe New York City Transit Authority(NYCTA) schemed to withhold trainingfrom them and subsequently denied thempromotions. A jury awarded the plain-tiffs liquidated damages and $50,000 incompensatory damages. The NYCTAappealed, alleging that government enti-ties are exempt from liquidated damages

because they are punitive, and that theaward for compensatory damages “devi-ated materially from reasonablecompensation.” Writing for the court ofappeals, Judge Reena Raggi relied on theU.S. Supreme Court’s opinion in TransWorld Airlines, Inc. v. Thurston, 469U.S. (1995), which held that Congressintended for the ADEA’s liquidated dam-ages provision to be “punitive in nature.”The court also relied on Potence v.Hazelton Area School Dist., 357 F.3d366 (3d Cir. 2004), to determine thatsince state and municipal entities areexpressly included in the ADEA’s defi-nition of employer, Congress did notintend to limit liquidated damages to pri-vate employers. Despite the NYCTA’scontention that the plaintiffs were notentitled to the $50,000 in compensatorydamages because there was no evidenceof medical treatment, the court upheldthe award. The court explained that“while many cases applying N.Y.C.P.L.R. § 5501(c) ’reduce awards to$30,000 or below,’others ’uphold awardsof more than $100,000 without discus-sion of protracted suffering, trulyegregious conduct, or medical treat-ment’” (quoting Meacham v. KnollsAtomic Power Lab., 381 F.3d 56, 78(2d Cir. 2004)). Cross v. NYCTA, 417F.3d 241 (2d Cir. Aug. 2, 2005).

DISABILITY DISCRIMINATION

Minnesota Multiphasic PersonalityInventory

Three brothers who worked for a chainof household appliance stores challengedthe administration of the Minnesota Mul-tiphasic Personality Inventory (MMPI),a psychological test that the employersaid it used to measure personality traits,as one of a battery of tests required ofany employee who wanted a promotion.Elevated scores on certain scales of theMMPI can be used to diagnose certainpsychiatric disorders. Any applicant whoscored more than 12 “weighted devia-tions” on the MMPI was not consideredfor promotion, and the three plaintiffs allhad more than 23 deviations. They sued,claiming that the employer’s use of theMMPI violated the ADA. The districtcourt granted summary judgment. TheSeventh Circuit Court of Appeals reversed

the holding that use of the MMPI was amedical examination and directed entryof judgment in favor of the plaintiffs.Other parts of the decision below, how-ever, were affirmed. Karraker v.Rent-a-Center, Inc., — F.3d — (7th Cir.June 14, 2005).

DISCOVERY

Electronic DiscoveryIn a contentious age discrimination

collective action in federal court inKansas, a defendant produced electron-ic documents only after scrubbing themetadata and locking spreadsheet cellsso that their contents were sometimesincomplete. (Metadata is “data aboutdata,” i.e., “information describing thehistory, tracking, or management of anelectronic document.” Ordinarily mostmetadata is not visible on the documentbut can be brought out by technicallyadept computer users. Software existsthat enables a custodian of electronic doc-uments to “scrub,” or remove, themetadata.) The plaintiff requested sanc-tions. The magistrate judge consideredthe facts that (1) the plaintiff had notspecifically requested preservation of themetadata, (2) the court had ordered pro-duction of the documents and thespreadsheets “as they were kept in theordinary course of business,” (3) someinformation in the metadata might beprivileged, but the defendant had not pro-duced a privilege log, (4) standards forproduction of electronic documents areevolving, and (5) the defendant knew orshould have known that some of thedeleted or hidden information was rele-vant and called for. The court held thatthe information had to be produced butthat, because standards were unclear andevolving, sanctions were not justified.Williams v. Sprint/United Manage-ment Co., — F. Supp. 2d —, 2005 WL2401626 (D. Kan. Sept. 29, 2005).

ERISA

Employer ContributionsJudge Denis R. Hurley (E.D.N.Y.)

confronted the issue of whether a jointemployer, which had not signed a col-

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lective bargaining agreement, was oblig-ated to make employer contributions toemployee benefit plans in the absence ofany allegation of fraud or alter ego. Theplaintiff-employees sued to recoverunpaid employee fringe benefit contri-butions from Premier Staffing, acompany that provided human resourcesservices to employers. Premier Staffingleased employees to its clients and main-tained substantial control over theircompensation, such as the ability to hireand fire. Premier provided staffing ser-vices to P.M.B. Development Team Corp.Although P.M.B. signed a collective bar-gaining agreement with a union, Premierdid not. Section 515 of ERISA providesthat “[e]very employer who is obligatedto make contributions to a multiemployerplan under the terms of the plan or underthe terms of a collectively bargainedagreement shall, to the extent not incon-sistent with law, make such contributionsin accordance with the terms and condi-tions of such plan or such agreement.”29 U.S.C. § 1145. Although Premier andP.M.B. were joint employers, Premierwas not deemed an employer for ERISApurposes. “Thus, satisfying the statuto-ry definition of employer as provided forin 29 U.S.C. § 1002(5) is in itself insuf-ficient to impose a duty on an employerto make pension contributions; ratherSection 515 permits recovery onlyagainst those employers who are alreadyobligated in the absence of ERISA, tomake ERISA contributions.” (Internalcitations omitted.) Olivieri v. P.M.B.Const., Inc., 383 F. Supp. 2d 393, 2005WL 2037349 (E.D.N.Y. Aug. 24, 2005).

Promissory EstoppelIn a summary order, the Second Circuit

Court of Appeals reversed a decision byJudge Naomi Reice Buchwald (S.D.N.Y.)that had dismissed an ERISA complaintalleging promissory estoppel and breachof fiduciary duty. The plaintiffs, employ-ees of Credit Lyonnais Rouse, lost certainpension benefits that had been promisedto them when their employer merged intoits parent company, Credit Lyonnais.After the merger, the plaintiffs, who hadreceived documents showing that theirstarting date with Rouse would be treat-

ed as their starting date with the mergedcompany for purposes of vesting andfunding, learned that their pensionswould not be retroactively funded to theirRouse starting dates. The district courtheld that neither claim was viable,because the plaintiffs could not allege asufficient writing proving the existenceof the promise and because the reliefsought was not equitable. The court ofappeals held that promissory estoppelcould, in fact, be a cause of action underERISA, as long as the four elements ofpromissory estoppel could be alleged: apromise, reliance upon it, an injurycaused by the reliance, and an injustice ifthe promise is not enforced. The courtheld that the plaintiffs had shown docu-mentary evidence sufficient to show thepromise, and that there was “reason to think that discovery would reveal additional writings, such as internalmemoranda, that would support plain-tiffs’ claim.” There was also enoughevidence to show breach of fiduciaryduty. The plaintiffs were represented byNELA/NY member Pearl Zuchlewski(and the defendants by Barbara Roth ofTorys. Extra special congratulations toPearl!) Ladouceur v. Credit Lyonnais,2005 WL 3452357 (2d Cir. Dec. 16,2005) (summary order not constitutingprecedential authority).

FMLA

Retaliation: Employed Less than a YearAn employee who was fired after she

informed her employer that she was preg-nant and would need maternity leavebeginning after her one-year anniversary,stated a claim, according to a district courtfor the Eastern District of Pennsylvania.Even though an employee must work forat least a year in order to be eligible forFMLAleave, which plaintiff had not doneat the time of the pregnancy notification,the plaintiff complied with the FMLA bytelling her employer, approximately sixmonths after she started work, that shewould need FMLA leave at some pointafter she had worked there for twelvemonths. Two weeks after the notification,she was subjected to a pre-disciplinaryconference, a written reprimand, and anegative performance evaluation, followedby termination. She sued for, among other

things, retaliation in violation of theFMLA. The district court rejected theemployer’s arguments that she was notprotected because she had not worked forit for more than a year when she was fired,and that her assumption that she wouldstill have been employed by the expecteddate of her delivery was too speculative.Beffert v. Pennsylvania Dep’t of Pub-lic Welfare, — F. Supp. 2d — (E.D. Pa.April 18, 2005).

JURISDICTION

Brookhaven National LaboratoryBrookhaven National Laboratory is a

research facility operated by BrookhavenScience Associates, LLC, pursuant to acontract between the BSA and the U.S.Department of Energy. Is it a governmentagency? Is it part of the federal or possi-bly the state government? A “federalenclave”? A state actor? Does state lawapply to it? Counsel for a man allegingemployment discrimination based uponage and disability had a hard time answer-ing these questions; he sued under theADEA, the Rehabilitation Act, the NewYork State Human Rights Law, and 42U.S.C. § 1983. The answer according toJudge Arthur D. Spatt (S.D.N.Y.) seemsto be that the land upon which BNLresides is a federal enclave (over whichthe federal government ordinarily exer-cises exclusive jurisdiction) but that NewYork State exercises concurrent jurisdic-tion for service of process only, so theNew York State Human Rights Law doesnot apply. The Section 1983 claim wasdismissed as having been insufficientlypleaded. The ADEAretaliation claim wasdismissed because the alleged retaliatoryacts occurred before the plaintiff filed his EEOC charge and so, the court held, should have been included in thecharge. Because of statute of limitationsissues, the only remaining claim was theADEA termination claim. Schiappa v.Brookhaven Science Associates, LLC,— F. Supp. 2d —, 2005 WL 3358413(E.D.N.Y. December 12, 2005).

PREGNANCY DISCRIMINATION

Even in the notorious Fourth Circuit, aslong as there are different decisionmak-

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ers involved in an employee’s hiring anddischarge, the employee does not have toshow that she was replaced by someoneoutside her protected class to establish aprima facie case under Title VII. Afemaleaccount manager, fired a year after shegave birth, sued alleging sex discrimina-tion, pregnancy discrimination, andretaliation. When the employee initiallyannounced her pregnancy, her supervi-sor transferred her to a less profitable salesterritory. During her pregnancy, he rec-ommended her termination, and whenshe returned from maternity leave he gaveher an unsatisfactory performance rating.He eventually fired her and replaced herwith another woman. The plaintiff hadnot been hired by the same supervisorwho fired her. The court determined thatthe district court had failed to considerwhether the plaintiff’s case qualified forthe different-decisionmaker exception tothe fourth prong of the prima facie case.The fourth prong is warranted because“replacement within the protected classgives rise to an inference of non-dis-crimination with respect to the protectedstatus.” However, the court recognizedthat there are instances where a defen-dant will hire someone from withinplaintiff’s protected class to “disguise itsacts of discrimination.” Regardless ofwhether the district court determines thatthe plaintiff falls within the different-deci-sionmaker exception, she had alreadyestablished a prima facie case with herpregnancy discrimination claim. Her pro-tected class was pregnant women, andthe woman who replaced her was notpregnant. Miles v. Dell, Inc., 429 F.3d480 (4th Cir. Nov. 22, 2005).

PROCEDURE

Meeting the 15-Employee Title VIIMinimum

A plaintiff who alleged sexual harass-ment worked for two different companiessimultaneously. The companies wereengaged in the same project and workedtogether, but neither had as many as 15employees (although they did in combi-nation). In order to meet the Title VIIminimum, she alleged that they werejoint employers. Although the complaint

was dismissed, the court explained thataggregating the employees of multipleentities could be justified under a jointemployer theory only when counting thenumber of employees attributable to eachemployer either because they are for-mally employed or jointly employed bythat employer. In other words, since shewas the only employee jointly employedby both employers, they still did not meetthe statutory minimum number ofemployees. Joint employer statusassumes that there is no single integrat-ed enterprise. However, under the singleemployer theory, where two entities areactually a part of a single enterprise, allemployees of the constituent entities areconsidered employees of the “overarch-ing” integrated entity. Arculeo v. OnSite-Sales & Marketing, LLC, 425 F.3d193 (2d Cir. Sept. 30, 2005).

RELIGIOUS DISCRIMINATION

In a lengthy decision, Judge SidneyH. Stein (S.D.N.Y.) dismissed, pursuantto Fed. R. Civ. P. 12(b)(6), a complaint byemployees of the Salvation Army, Inc.,asking for relief from the SalvationArmy’s efforts to enforce compliancewith its religious mission by its staff. Thecomplaint named as defendants not onlythe Salvation Army but the City of NewYork and the commissioners of several

state and local government entities thatcontract with the Salvation Army for theprovision of social services. The districtcourt found that the plaintiffs had failedto allege that the discrimination they suf-fered could properly be attributed to thegovernment defendants, and that the Salvation Army itself was not a govern-ment entity (although it derives morethan 95% of its budget from contractswith government entities). Accordingly,the complaint was dismissed in all respectsexcept (a) against the government defen-dants with respect to the plaintiffs’taxpayer status and (b) against the Sal-vation Army with respect to theretaliation claims under state and citylaw. Lown v. Salvation Army, Inc., 393F. Supp. 2d 223, 2005 WL 2415978(S.D.N.Y. Sept. 30, 2005).

RESTRICTIVE COVENANTS

Justice Charles Edward Ramos (Sup.Ct., N.Y. Cty.) declined to enforce arestrictive covenant in an otherwise validemployment agreement, flatly holdingthat the fundamental requirement that arestrictive covenant governing post-employment competition must furtherthe employer’s legitimate interests allowsrestrictions only (a) to the extent neces-

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sary to prevent disclosure or use of tradesecrets or confidential information, or(b) where the employee’s services areunique or extraordinary. Two formeremployees of the corporate plaintiff, aswell as their new employer, were defen-dants. One of the former employees hadbeen looking for a new job and was firedwhen the prospective (and later actual)new employer accidentally faxed to apartner of his then-current employer amemorandum asking its counsel foradvice about the legality of hiring himin light of his noncompete agreement.After he was fired, he moved to the newemployer and solicited the second indi-vidual defendant-to-be to join him there.The old employer tried to induce her tosign a new, more restrictive noncompetein return for a promotion; she respond-ed by saying she had to consult herattorney, then downloaded a client con-tact list and other information (which shelater returned). She let the promotionoffer lapse and was fired, and both indi-viduals began work at the new employeron the same day. The court denied thepreliminary injunction sought by the cor-porate plaintiff, holding that it had notshown a likelihood of prevailing on themerits, that it had not shown that it wouldsuffer irreparable injury absent theinjunction, and that the balance of equi-ties did not favor it. Kanan, Corbin,Schupak & Aronow v. FD Interna-tional, Ltd., 8 Misc. 3d 412, 797N.Y.S.2d 883, N.Y.L.J. 5/23/05, p. 19,col. 3 (Sup. Ct. N.Y. Cty. May 9, 2005).

RETALIATION

Title VII protects an employee even ifshe is merely named as a voluntary wit-ness in someone else’s action that is settled

before she testifies. The Second CircuitCourt of Appeals held that the employeehad “participated in protected activity forthe purposes of alleging her retaliationclaims”—since the employer had takencertain actions against her the day afterthe plaintiff co-worker’s deposition. Theretaliatory actions consisted of the wit-ness’ being angrily removed from thework team with which she had been suc-cessfully working for over a year, thenbeing told by the company’s HR manag-er (!) to “find another job” as theharassment was “never going to stop.”For the next two years, the company con-tinued to retaliate against her, includingfailure to promote and train, and ultimatelyfired her during a restructuring. Later, anoffer of reemployment was rescindedbecause her former supervisor said she“had a lawsuit” against the company (shehad filed an administrative complaint withthe CCHRO). The district court (AlfredCovello, D. Conn.) had dismissed thecomplaint for lack of proof—e.g., theplaintiff had not provided an affidavit ordirect proof from a representative of thedefendant that the “lawsuit” comment“caused or contributed to” the revocationof the reemployment offer. In an opinionby Judge Thomas Meskill, joined byJudges Jon A. Newman and JoseCabranes, the Second Circuit Court ofAppeals held that the plaintiff was pro-tected from retaliation under Title VII andConnecticut state law, and vacated the dis-trict court’s finding that she had not madeout a prima facie case. The court ofappeals held that it was error for the dis-trict court to refuse to “consider,” even asbackground evidence, alleged retaliatoryacts occurring outside the statute of lim-itations, and to refuse to consider anyalleged retaliatory acts not specificallymentioned in the EEOC charge. The court

also reinstated the failure-to-rehire claim,holding that the ex-supervisor’s negativereference created a jury question aboutwhether such conduct amounted to anadverse employment action. Jute v.Hamilton Sundstrand Corp., 420 F.3d166 (2d Cir. Aug. 23, 2005).

An employer will sometimes go togreat lengths to retaliate against anemployee. Writing for the Seventh Cir-cuit Court of Appeals, Judge FrankEasterbrook revived a plaintiff’s claimthat her senior manager had retaliatedagainst her in violation of Title VII by“eliminating a flex-time schedule that hadallowed her to leave work by 3 p.m. tocare for her developmentally disabledson.” For years the plaintiff had beenallowed to work from 7 a.m. to 3 p.m.However after she filed a race discrimi-nation charges with the EEOC againsther employer, her flex-time privilegeswere revoked. The court reasoned thatthe retaliation provision of Title VII ismuch broader than a claim for discrimi-nation because “retaliation may takemany forms” and does not require anadverse employment action. Unlike TitleVII discrimination charges, which focuson discrimination regarding an employ-ee’s compensation, terms, conditions, orprivileges of employment, retaliation mayoccur well beyond the workplace. Thecourt held that if an employer seeks toexploit an employee’s particular vulner-ability in retaliation for a charge ofdiscrimination, a reassignment could bea material change, or even a constructivedischarge. For example, the plaintiff’semployer could have retaliated by audit-ing her tax returns or hiring a privateinvestigator to spy on her. Washingtonv. Illinois Dep’t of Revenue, 420 F.3d658 (7th Cir. Aug. 22, 2005).

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Practice tip: In this era of “pretext plus”it is imperative that we rule out throughdiscovery any other potential reason(s)for an adverse employment action otherthan the one provided, i.e., poor perfor-mance. I always make it a practice to askthe decision maker at his or her deposi-

tion whether the reason(s) given for thedischarge are (is) the only one(s). If theanswer is yes, I continue by asking if thereis another reason he or she is too embar-rassed to admit. If the response is no (andI anticipate it will be) then I ask if the ter-mination was because he or she didn’t likethe person, or if it was due to favoritism,nepotism, office politics, log rolling, back

scratching, etc.—or any other reason. Iwill bet the response will be no, no, no,etc. At that point, if you can prove the stat-ed reason is pretextual then you can arguethat the cause of the adverse employmentaction was discriminatory if admittedlythere was no other reason that is beingcovered up. n

PRESIDENT, from page 3

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SEXUAL HARASSMENT

Affirmative Defenses Must Be ArguedThe Faragher/Ellerth affirmative

defenses to sexual harassment must beraised by an employer before a court canconsider them. On appeal, a unanimouspanel of the D.C. Circuit Court ofAppeals concluded that the trial courthad erred when it dismissed a femalepolice officer’s Title VII sexual harass-ment claim against the District ofColumbia Department of Corrections.Judge Janice Rogers Brown, relying onRule 8(c) of the Federal Rules of CivilProcedure and the court’s decision inHarris v. Virginia, 126 F. 3d 339, 74FEP Cases 1835 (D.C. Cir. 1997) said,“[T]he Department concedes that it failedto raise the Faragher/Ellerth defense inits answer to the amended complaint, andit presents this court with no argumentas to why our holding in Harris shouldnot apply, arguing instead that Jones suf-fered no prejudice from its failure toplead the defense. However, in Harris,we were very clear that lack of prejudice

is not determinative.” By not includingthe Faragher/Ellerth defense in itsanswer, the Department of Correctionsfailed to comply with Rule 8(c) and,under Harris, was not eligible for sum-mary judgment on that basis, the courtsaid. On remand, the Department of Cor-rections may seek to amend its answerto plead the defense, and renew its sum-mary judgment motion. Jones v. Districtof Columbia Dep’t of Corrections, 429F.3d 276 (D.C. Cir. Nov. 15, 2005).

SUMMARY JUDGMENT

Adverse Employment ActionA pro se plaintiff’s claims for discrim-

ination and retaliation were dismissed by Magistrate Judge Andrew Peck(S.D.N.Y.), as affirmed in a summaryorder. The court of appeals held, amongother things, that a decrease in workload,without a demotion or pay cut, is not anadverse employment action covered byTitle VII. The plaintiff, a Jehovah’s Wit-ness of Puerto Rican descent, allegeddiscriminatory comments by managerssuch as “you people rather die than takeblood” and “to hell with your God.” She

complained to HR, which she said didnothing, and then to her manager’s boss,and promptly got her first poor reviewin twelve years. She hired counsel andfiled a complaint with the State Divisionof Human Rights, and several monthslater received a “final written warning,”followed by termination. The termina-tion was effective some 5-6 months aftershe had filed the SDHR complaint. Themagistrate judge, quoting the usual caselaw about being cautious in grantingsummary judgment in employment dis-crimination cases, interpreted Reeves v.Sanderson Plumbing Prods., Inc., 530U.S. 133 (2000), as having held that“merely proving a prima facie case anddisproving the employer’s explanation… will not preclude summary judgmentin all cases; rather, a case-by-case analy-sis is necessary.” Here, the plaintiff hadalleged that after her complaints, herimportant duties as an “administrativesecretary” had been removed from her,leaving only tasks such as envelope stuff-ing, making coffee, copying, andcleaning after office parties that she had

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refused to attend. Considering only thelapse of time between the SDHR filingand the termination (without any of theinterim, ongoing events), the court heldthat the temporal proximity—withoutmore—was insufficient either to makeout a prima facie case or to create aninference of discrimination or retaliation.

The court of appeals seems to haveadopted this rather flawed conclusionwithout paying much attention to thefacts. Diaz v. Weill Medical College,138 Fed. Appx. 362, 2005 WL 1608609(2d Cir. July 1, 2005) (summary ordernot constituting precedential authority),aff ’g — F. Supp. 2d —, 2004 WL285947 (SDNY Feb. 13, 2004).

Age, National Origin, and RaceThe Second Circuit Court of Appeals

recently upheld a ruling from the South-ern District of New York (Denny Chin,J.) that had granted summary judgmentdismissing an age, national origin, andrace discrimination complaint. The com-plaint had been filed under Title VII of

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Elena Goldstein Esq.New York Legal Assistance Group450 W. 33rd St., 11th FlrNew York, NY 10001Work: 212-613-5024egoldstein@nylag.org

Danielle Guistina Esq.Dolin, Thomas & Solomon, P.C.The Strong-Todd House693 East AvenueRochester, NY 10407Work: 585-272-0540Fax: 272-0574dguistina@dts-esq..com

Gary E. Hanna Esq.Law Offices of Gary E. Hanna225 Broadway, Ste. #1910New York, NY 10007Work: 212-267-2073Fax: 267-7299G-Hanna@msn.com

Glenn R. Kramer Esq.425 East 76th St., #6ANew York, NY 10021Work: 508-740-1131gkramer@gmail.com

Todd A. Krichmar Esq.Beranbaum Menken Ben-Asher &Bierman, LLP80 Pine St., 32nd FlrNew York, NY 10005Work: 212-509-1616Fax: 509-8088tkrichmar@bmbblaw.com

Peter Malloy Esq.Law Office of Howard A. Kornfeld20 Vesey StreetNew York, NY 10007Work: 212-227-4492Fax: 619-6701pmalloy@nysbar.com

Letisha Miller129 West 147 Street, # 25KNew York, NY 10039Work: 917-312-4671miller1@mail.law.cuny.edu

Felicia Nestor Esq.301 29th Street, Apt. 7Union City, NJ` 07087Work: 201-330-1618Fax: 330-1618felicianestor@yahoo.com

Kimberly Nichols Esq.Dolin, Thomas & Solomon, P.C.The Stron-Todd House693 East AvenueRochester, NY 10407Work: 585-272-0540Fax: 272-0574knichols@dts-esq..com

Rick Ostrove Esq.Leeds Morelli & BrownOne Old Country Road, Ste. 347Carle Place, NY 11514Work: 516-873-9550Fax: 747-5024rostrove@optonline.net

Samuel F. Prato Esq.183 Eastt Main Street, Ste 1435Rochester, NY 14604Work: 585-325-5900Fax: 232-1752pratolaw@frontiernet.net

Munir Pujara Esq.Ritz & Clark LLP40 Exchange Place, Ste. 2010New York, NY 10005Work: 212-321-7075Fax: 321-7078mpujara@ritzandclark.com

Fran Rudich Esq.Locks Law Firm, PLLC110 East 55th, 12th FloorNew York, NY1 10022Work: 212 838-3333frudich@lockslawny.com

Adana Savery 760 Montgomery Street, #5HBrooklyn, NY 11213asavery@gmail.com

Sarah B. Shlehr Esq.Law Offices of Sarah B. Schlehr3940 Laurel Canyon Blvd., #196Studio City, CA 91604Work: 310-492-5757Fax: 601-7959sarah@pregnancylawyer.com

Derek T. Smith Esq.Akin & Smith, LLC305 Broadway, Ste 1101New York, NY 10007Work: 212-587-0760Fax: 587-4169dtslaws@msn.com

David C. Wims Esq.229 East 95th Street, #1RBrooklyn, NY 11212Work: 718-345-5286Fax: 866-450-9512davidwims@hotmail.com

NEW MEMBERS, from page 14

the Civil Rights Act of 1964 and the AgeDiscrimination in Employment Act withthe New York State Division of HumanRights (“NYSDHR”). In December 1996,an African-American employee of theNYCTA, then 63 years old, applied for apromotion to Civil Engineer. By April1998, the NYCTA posted the list ofemployees who were promoted. Althoughthe plaintiff had learned in late 1997 thatanother candidate had been promoted, hefiled his federal and state complaint withthe NYSDHR over 300 days later. TheNYCTA argued that the plaintiff shouldhave filed his complaint within 300 daysof learning about the first promotion inApril 1997, but Judge Chin reasoned thatlearning of one promotion out of eigh-teen in late 1997 was insufficient to provethat the plaintiff had necessarily receivednotice that he would not be promoted.Although summary judgment was deniedon the timeliness of the plaintiff’s admin-istrative complaint, the court determinedthat he nevertheless had failed to offersufficient evidence that NYCTA’s prof-fered non-discriminatory reason forfailing to promote him was a pretext. Fur-ther, nineteen of the 48 successfulcandidates for the promotion were over50 years of age, and three were over age65, at the time of their applications.Moorehead v. New York City TransitAuthority, 2005 WL 3076883 (2d Cir.Nov. 17, 2005) (summary order not con-stituting precedential authority).

Disability DiscriminationA construction worker who sued for

disability discrimination lost on his claimson a motion for summary judgment. Thedistrict court for the Southern District ofNew York found that the pro se plaintiffhad failed to prove that he was disabledwithin the meaning of the ADA. Theplaintiff claimed that his employers firedhim because of his disability, a heartattack. During the deposition, the plain-tiff admitted that he did not have difficultywith any major life activity. This testi-mony was fatal to his claim, of course,because in order to be protected by theADA, the plaintiff had to establish notonly that his heart attack was an impair-ment but that it substantially limited a

major life activity. As a result, the courtdetermined that no reasonable jury couldfind in the plaintiff’s favor, and that hisheart attack could not be a disability underthe ADA. The court also dismissed thecomplaint because when the plaintiffreturned to work after his heart attack, theemployer made him a Lead Estimator ona multi-million dollar project. Althoughthe employer had knowledge of hisimpairment, the plaintiff could not showthat this meant it regarded him as disabled.Batac v. Pavarini Const. Co., 2005 WL2838600 (S.D.N.Y. Oct. 27, 2005).

Disability Discrimination and Retaliation

A Senior Analyst in the TreasuryDepartment of Marsh & McLennan Co.(“MMC”) took a temporary medical leavefrom his position and did not resume full-time duty for three months. When theemployee returned to work, his supervi-sor barely spoke to him, and he was“deluged” with work. The employee metwith human resources and explained thathe was considering leaving MMC. Heshared these same feelings, and more,with his supervisor. By the end of themeeting, the two began discussing thepossibility of the employee leaving MMCwith a severance package. The employ-ee’s attorney sent a letter to MMC in an

attempt to negotiate an acceptable sever-ance package and advised that theemployee had a “colorable” claim underthe ADA. Within a day of receiving coun-sel’s letter, MMC gave the employee anunusually large amount of work. Theemployee’s attorney told MMC that heconsidered such action retaliatory. A fewdays later, MMC sent the employee’sattorney a letter saying that it acceptedthe employee’s resignation and wouldaccede to counsel’s demand for a three-month severance package in exchangefor a release of the employee’s claimsagainst MMC. However, MMC rejectedthe employee’s demand for payment ofhis bonus, and he sued. While the courtgranted summary judgment on theemployee’s claim for disability discrim-ination, the retaliation claim survived.The court reasoned that the temporalproximity between receipt of counsel’sletter and the dismissal could lead a find-er of fact to conclude that the employeewas fired in retaliation for raising a dis-ability discrimination claim. Theemployee was represented by NELA-NYmember Harvey Mars. Congratulations!Stall v. Marsh & McLennan Co., IndexNo. 121232-03 (Sup. Ct. N.Y. Cty. Nov.15, 2005).

ROBERT LLOYD GOLDSTEIN, M.D.CLINICAL PROFESSOR OF PSYCHIATRY

College of Physicians & SurgeonsColumbia University

(212) 595-6480

FORENSICGOLD@MEDSCAPE.COM

PSYCHIATRIC EXPERT WITNESS

Extensive Experience inEmployment Discrimination

and Harassment Cases

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Race Discrimination and RetaliationThe practice of employment law often

requires counsel to parse out differentcauses of action and their differingrequirements and consequences. Oneattorney represented both an African-American mechanic, who claimed racediscrimination, and a white mechanic,who claimed retaliation for opposing dis-crimination. Both claims were broughtunder 42 U.S.C. § 1981. The court dis-missed the retaliation claim on the basisthat “[r]etaliation is grounds for reliefunder Title VII of the Civil Rights Actof 1964, which ’makes it unlawful forany employer to discriminate against anemployee for opposing a practice madeunlawful by the Act,’ but Section 1981,in contrast, encompasses only racial dis-crimination on account of the plaintiff’srace and does not include a prohibitionagainst retaliation for opposing racialdiscrimination,” quoting Little v. Unit-ed Techs., Carrier Transicold Div., 103F.3d 956, 72 FEP Cases 1560 (11th Cir.1997). The plaintiff’s claims against hisunion for breach of the collective bar-gaining agreement and breach of duty offair representation in resolving the dispute with the employer were dis-missed. Plaintiff’s attorney did not raisehis arguments until the reply brief on thesummary judgment motion. The courtnoted that arguments that first appear ina reply brief are deemed waived. Fortu-nately, the race discrimination claimsurvived based upon sufficient circum-stantial evidence to show a discriminatoryemployment action. Hart v. TransitMgmt. of Racine Inc., 426 F.3d 863 (7thCir. Aug. 17, 2005).

Sex DiscriminationIn a lengthy, careful opinion, Judge

Robert W. Sweet (S.D.N.Y.) denied aGerman bank’s motion for summaryjudgment in a gender discrimination caseand motion to strike various materialssubmitted in opposition to the motion.The plaintiff, a trader in the bank’s trea-sury department, alleged discriminationin its refusal to promote her to treasurerafter it demoted her from that role andreplaced her with a man, who laterretired, creating a vacancy. Other womentestified that the plaintiff’s manager,whose role in the decision makingprocess was disputed, had made biasedremarks about women. The court reject-ed the defendant’s argument that suchcomments were mere “stray remarks,”citing (among other cases) Reeves v.Sanderson Plumbing Prods., Inc., 530U.S. 133, 152 (2000). With respect to themanager’s role, the court noted that“[w]here successive evaluators considerand rely on the report or recommenda-tion of prior biased evaluators, thefact-finder may infer that discriminationhas infected the entire process.” Sincethe plaintiff’s qualification for the pro-motion was one of several disputedfactual issues, the court declined to grantsummary judgment. With respect towhether she had suffered an adverseemployment action, the court held thatintangible as well as tangible employ-ment actions could be considered. As forthe plaintiff’s claim of hostile work envi-ronment, again the court deferred to thefact-finder. It also declined to strike anyof the affirmations and other materialsattacked as inadmissible or irrelevant bythe defendant. Hearty congratulations toAnne L. Clark, who represented the

plaintiff (against Joel E. Cohen ofMcDermott Will & Emery). Zakre v.Norddeutsche Landesbank Girozen-trale, 396 F. Supp. 2d 483, 2005 WL2864667 (S.D.N.Y. Nov. 1, 2005).

TITLE VII

Employers Vicariously Liable forHarassment by Independent Contractors

A nurse filed a sexual harassment anda U.S. Constitution Equal ProtectionClause claim against an employer-hos-pital for not preventing a doctor fromengaging in discriminatory treatmenttoward women. The doctor, who defen-dant hospital claimed was an independentcontractor, was abusive to the hospital’sfemale staff. When the doctor learned thatthe plaintiff-nurse filed the complaint, hepinned her to a cabinet and brushed hercheek with his closed fist. The nurse quita few days later. The district court heldthat the hospital was not liable for the actsof an independent contractor, but the Sev-enth Circuit Court of Appeals, reversing,held that the hospital was vicariouslyliable. The court’s analysis flowed fromdirect liability theory in private law. How-ever, the plaintiff’s constructive discharge,retaliation, and Equal Protection claimsfailed. The court did not consider the doc-tor’s threat of physical violence anadverse employment action because “talkis cheap.” The court took the position thatthe doctor’s threat of physical violencedid not amount to constructive discharge,because only an employer can dischargea worker, and the doctor was not heremployer. The court also dismissed theconstitutional claim because the Consti-

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centre, Inc., 398 F.3d 1011, 1015 (8th Cir.2005) (“The Supreme Court held thatdirect evidence is not required in order fora mixed motive jury instruction to begiven.”). In 2005, the Sixth Circuit laidout the history of the mixed-motive analy-sis, acknowledging that the SupremeCourt had overruled its own opinions:

In the wake of [the enactment ofSection 2000e-2(m)] and the Price

Waterhouse opinion, most courts(including this one) held that toinvoke the mixed-motive analysis,a plaintiff must produce direct evi-dence…. However, in DesertPalace, the Supreme Court clari-fied that direct evidence is notrequired to establish liability under§ 2000e-2(m); rather, a plaintiffcan obtain a ’mixed-motive’ juryinstruction based only on circum-stantial evidence.

Harris v. Giant Eagle Inc., 133 Fed.Appx. 288, 296-297, 2005 WL 1313147,at *7 (6th Cir. 2005). Unfortunately, thisopinion is unpublished.

As plaintiffs’ attorneys, we must dili-gently advance and protect the SupremeCourt’s ruling in Desert Palace. Somecircuits are trying to ignore Desert Palaceor marginalize it into oblivion, and it isup to us to make the ruling impossible toignore. n

DESERT PALACE, from page 6

23

42 42 U.S.C. § 1981a(b)(3). 43 42 U.S.C. §§ 12101 et seq.44 42 U.S.C. § 12112(b)(5).45 42 U.S.C. § 12117(a).46 Heyman v. Queens Vill. Comm. for Mental

Health, 198 F.3d 68, 72 (2d Cir. 1999).47 42 U.S.C. § 12102(2).48 42 U.S.C. § 2000e-5(b). 49 42 U.S.C. § 12117, 2000e-5(b).50 42 U.S.C. § 2000e-5(g); 42 U.S.C. § 12117.51 42 U.S.C. §§ 1981a(a)(1), (b)(2).52 42 U.S.C. § 1981a(a)(3); see also Roberts v.

Progressive Indep. Inc., 183 F.3d 1215, 1223(10th Cir. 1999).

53 42 U.S.C. § 1988(c).54 42 U.S.C. § 12205.55 29 U.S.C. §§ 621-634.56 29 U.S.C. § 631(c)(1).57 29 U.S.C. § 630(b).58 29 U.S.C. § 626(d). 59 Oscar Mayer & Co. v. Evans, 441 U.S. 750,

757 (1979) (internal citation omitted).60 29 U.S.C. § 626(b).61 Front pay is not included in the calculation of

liquidated damages. McGinty v. State, 193F.3d 64, 69 (2d Cir. 1999).

62 Violations of the ADEA are “willful” “if theemployer knew or showed reckless disregardfor the matter of whether its conduct was pro-hibited by the ADEA.” McGinty v. State, 193F.3d 64, 69 (2d Cir. 1999) (quoting Hazen PaperCo. v. Biggins, 507 U.S. 604, 614 (1993)).

63 29 U.S.C. § 626(b). Liquidated damages aregenerally computed by doubling the amountawarded to a successful ADEA plaintiff forback pay and benefits. Front pay is not includ-ed in the calculation of liquidated damages.McGinty v. State, 193 F.3d 64, 69 (2d Cir.1999).

64 See Comm’r of Internal Revenue v. Schleier,515 U.S. 323, 326 (1995).

65 29 U.S.C. §§ 2601 et seq.66 29 U.S.C. § 2612(a)(1). 67 29 U.S.C. § 2614(a)(1).68 29 U.S.C. § 2611(4).69 29 U.S.C. § 2611(2).70 29 U.S.C. § 2617(c).71 29 U.S.C. § 2617(a)(1)(A).72 Id.73 Id.74 29 U.S.C. § 2617(a)(3).75 29 U.S.C. § 2617(a)(1)(B).76 29 U.S.C. § 206.77 29 U.S.C. § 206(d)(1).78 Id.79 29 U.S.C. § 215(a)(3).80 29 U.S.C. § 203(s)(1).81 29 U.S.C. §§ 201 et seq.82 Ososky v. Wick, 704 F.2d 1264, 1265 (D.C.

Cir. 1983).83 29 U.S.C. § 255(a). Claims for unequal pay,

whether under the EPA or Title VII, are not con-tinuing violations; each unequal paycheck is adiscrete violation, triggering the running of thestatute of limitations. See Pollis v. New Sch.for Soc. Research, 132 F.3d 115, 119 (2d Cir.1997); but see Jenkins v. Home Ins. Co., 635F.2d 310, 312 (4th Cir. 1980).

84 See 29 U.S.C. § 206(d). 85 See 29 U.S.C. §§ 216(b), 260.86 See 29 U.S.C. § 216(b).87 Id.88 See Erickson v. New York Law Sch., 585

F.Supp. 209, 213 (S.D.N.Y. 1984).89 N.Y. Lab. L. §§ 194-198-a. 90 Mize v. State Div. of Human Rights, 328

N.Y.S.2d 983, 986 (1972).91 N.Y. Lab. L. § 194(1).

92 Mize at 987.93 N.Y. Lab. L. § 194 (1).94 N.Y. Lab. L. § 198(3).95 N.Y. Lab. L. § 190(3). 96 Id.97 N.Y. Lab. L. § 198(3). 98 N.Y. Lab. L. § 198(1-a). 99 N.Y. Lab. L. §§ 198(1), (1-a).

100 N.Y. Exec. L. § 296. 101 The NYSHRL prohibits discrimination on the

basis of age against individuals who are 18 orolder. N.Y. Exec. L. § 296(3-a)(a).

102 N.Y. Exec. L. § 296. 103 N.Y. Exec. L. § 297(5). Once a claimant has

filed a charge with the SDHR, she cannot bringa lawsuit until the SDHR has disposed of hercharge. N.Y. Exec. L. § 297(9).

104 N.Y. C.P.L.R. §214(2) (2005); see also Mur-phy v. American Home Prod. Corp., 58N.Y.2d 293, 297 (1983).

105 N.Y. Exec. L. § 292(5).106 N.Y. Exec. L. § 297(4)(c)(ii); Aurecchione v.

New York State Div. of Human Rights, 98N.Y.2d 21, 26, 771 N.E.2d 231, 233, 744N.Y.S.2d 349, 351 (2002).

107 N.Y. Exec. L. § 297(4)(c)(iii). 108 N.Y. Exec. L. § 297(4)(c)(ii). 109 N.Y. Exec. L. § 297(4)(c)(iv); Obas v. Kiley,

149 A.D.2d 422, 539 N.Y.S.2d 767 (2d Dep’t1989).

110 N.Y.C. Admin. Code § 8-107.111 N.Y.C. Admin. Code § 8-102(5).112 N.Y.C. Admin. Code § 8-402(b), § 8-502(d).

The three-year limit is tolled during the pen-dency of an administrative charge with theNYCCHR. Id. at § 8-502(d).

113 N.Y.C. Admin. Code § 8-502(c).114 N.Y.C. Admin. Code § 8-120(a), § 8-502(a). 115 Id. at § 8-502(f).116 Id. at § 8-124(a). n

tution does not require the state to pre-vent or redress the misconduct of privateactors. Dunn v. Washington CountyHospital, 429 F.3d 689 (7th Cir. Nov. 17,2005).

PRACTICE TIP

When examining a witness at a depo-sition or at trial, or when preparing yourown witness, it may be hard to draw outinformation from the witness in admis-sible form. For example, a witness maysay that a co-worker was having an affairwith the boss, but he may be unable tosay how he knows that. “It was common

knowledge” or “They didn’t really hideit” or “Everyone knew” will not beadmissible. But “She kept looking intohis eyes and giving him little smiles” or“When he lit her cigarette, he held herhand in his hand” or “When they left theoffice holiday party, I saw them bothdrive in the same direction, toward herhouse, even though he lives in the oppo-site direction” or “He called her into hisoffice at least once or twice a week andlocked the door—I tried the door—andshe didn’t come out for an hour” not onlywill get the affair into evidence (cir-cumstantially, but there’s nothing wrongwith that) but will do so in a truly vividway.

U.S. Supreme Court Note: Roberts atOdds with EEOC

In August 2005, memos surfaced thatrevealed the adversarial stance ofSupreme Court Justice John Roberts Jr.towards the U.S. Equal EmploymentOpportunity Commission. According toa report in Bloomberg.com, the Nation-al Archives released memos from JudgeRoberts’days as special assistant to Attor-ney General William French Smith. TheBloomberg.com article reported thatRoberts wanted to “rein in” the EEOCbecause “its civil rights positions were’totally inconsistent’ with PresidentRonald W. Reagan’s policies.” n

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STATUTES, from page 9

ject in Brooklyn, the Williamsburg Hous-es. Ruth Campos, Elaine Martinez andMarie Edith Cenostin fought to be hiredand then challenged a pervasive patternof sex discrimination, sexual harassment,and retaliation at the hands of their super-visors at Tratoras Construction, Inc. Theychallenged this conduct, and were the cat-alysts for, and intervened in, a lawsuitbrought by the EEOC [] in the EasternDistrict of New York in August 2001. InMarch 2005, the plaintiff-intervenors wona $355,000 settlement. Campos isAfrican-American, Cenostin is Haitian-American, and Martinez is a Latina.

From the outset, the supervisors wereextremely hostile to the notion of hiringwomen, and only did so after Camposcomplained at a community taskforcemeeting. [The] women suffered from dis-criminatory work assignments, includingcleaning up and loading debris from thework areas, cleaning hallways and bath-rooms, and moving bags of cement andother equipment rather than demolitionwork, painting and shoring jobs (workgiven exclusively to the male laborers).The women were fully capable of per-forming the functions given to the men. Infact, Martinez had done demolition workon a previous job. The refusal to assignthe women to the “male” positions con-tributed to the more frequent layoffsexperienced by the women.

Tratoras payroll records confirmedthat the women were subjected to a pat-tern of periodic layoffs not experiencedby the male laborers. [For example], dur-ing the summer of 1999, Campos, whoat the time was the only female laboreron the job, was laid off for four monthsto make room for her supervisor’s malenephew who wanted a summer position.The women would be told there was “nowork” and they should not report to work.These layoffs ranged from a day or two toseveral weeks.

Throughout their employment withTratoras, the women were constantlyforced to put up with demeaning com-ments from their immediate supervisorsabout their menstruation cycles and theirsex life. The women complained withoutsuccess to the supervisors making thecomments, but the supervisors did not

relent. The women did not take their com-plaints to higher management for fear oflosing their jobs.

The fear of job loss for complainingproved justified. Once, while working onthe roof of one of the buildings, Martinezasked the foreman where to plug in a vac-uum cleaner. The foreman responded invulgar terms. Martinez complained to hersupervisor, and was terminated. Heinformed her that “You gotta learn tookeep your mouth shut. That’s why yougot fired.”

Campos, who is a widow, also lost herjob in the wake of a complaint she lodgedabout a supervisors’accusations that sheand the other female employees werelovers. She received no response to hercomplaint, except that on March 13, 2000she was told there was no more work forher and she was terminated. That sameday Cenoscin was also told she was ter-minated for lack of work.

Tratoras payroll records confirmedthat, after the firings of the three women,the company continually hired new malelaborers for the Williamsburg Houses job.

ND. How did you get this case?

RB. I had done work over the years withBrooklyn Legal Services in Williams-burg. The director there called me to seeif I was interested in talking to threewomen who had experienced discrimi-nation. Everyone in my previous officeliked the idea of the case. Women tryingto be laborers sounded sexy. And, once Imet the women and investigated theclaims, it sounded like a solid case whichit proved to be. In fact, it was an extreme-ly strong case.

ND. Please describe the most challeng-ing aspect of the case.

RB. Discovery was just about complet-ed when in October 2002 the case took atroubling turn: Tratoras’counsel advisedus that the company was basically insol-vent, that counsel wanted court approvalto be relieved, and that the insurance car-rier had denied coverage on the basis ofhaving received an untimely notice ofclaim.

What followed was about a year and ahalf of litigation concerning the timeli-ness of Tratoras’ notice to the carrier.Judge Dearie ultimately ruled that the

EEOC charges did not constitute a“claim” for purposes of the insurance pol-icy and that the notice given when thelitigation was commenced was timelynotice. The insurance carrier filed anappeal from this ruling to the Second Cir-cuit.

While the appeal was pending, the par-ties entered into settlement discussionswith the carrier (Tratoras remained insol-vent and out of business).

ND. Please describe lessons learned whileworking on the case.

RB. In every case, I am now very keenon finding out about insurance policies. Iask for any and all policies and consideran injured party claim under New YorkInsurance Law. I take very seriously theRule 26 provisions regarding insurance,and I follow up to make sure that I seethe policies.

ND. What were your most memorableexperiences as a lawyer?

RB. There have been a lot. Two, in par-ticular, spring to mind: the first one wasHuntington Branch NAACP v. Town ofHuntington, which overturned discrimi-natory zoning laws blocking constructionof subsidized housing. After we lost ini-tially, the District Court’s ruling wasoverturned by the Second Circuit in awonderful ruling, which was affirmedwithout argument by the U.S. SupremeCourt. It is the only ruling of the U.S.Supreme Court implying acceptance ofimpact theory in housing. The second onewas the Mount Laurel Litigation in NewJersey involving the low-cost housingobligations of municipalities. In unprece-dented fashion, the New Jersey SupremeCourt held three days of televised argu-ments where all plaintiffs and defenselawyers had to prepare to answer ques-tions from the court. This resulted in lotsof low-cost housing.

ND. What cases are you working on atthe moment?

RB. At the Anti-Discrimination Center,we deal mainly with housing discrimi-nation. A few weeks ago, we won a jurytrial relating to discrimination in arental property in Staten Island.

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25

INTERVIEW WITH JOSHUA FRIEDMAN

Joshua Friedman, Attorney at Law.Alston et al. v. Liebherr America, Inc.

ND. How would you summarize the case?

JF. It was essentially a hostile work envi-ronment based on race case, that was filedin the Eastern District of Virginia broughtby 26 African American employees. TheDefendant, Liebherr, manufactures miningtrucks. Those are those monstrous-sizedtrucks that work at mines. They’re thelargest trucks in the world.

The plant in question was located inNewport News, Virginia. And, the plain-tiffs were not allowed to use certainrest-room facilities that were set aside forwhites. It was right out of a time warp.They were subjected to racial slurs by theirsupervisors. They were assaulted.

There were basically no economic dam-ages in this case. All the monies I think thatwere awarded in the settlement were foremotional pain and suffering, and poten-tially the avoidance of punitive damages.

ND. And how did you come to have thiscase?

JF. Well, the plaintiffs had originally filedsuit and retained a local attorney. Thatattorney got a little bit overwhelmed bythe pace of litigation in the Eastern Dis-trict, which is also known affectionatelyas the “rocket docket.” That’s where thegovernment files all its cases that it wantsto get on a really fast track because in theEastern District, they have a firm rule thatcases must be tried within 6 months of thedate of the filing of the answer. In this case,because we had 26 individual plaintiffs,the Court granted us an additional 3months This was not a class action. It wasan individual action brought by 26 plain-tiffs. Defendant’s motion to sever waseventually denied.

The local attorney dismissed the casewithout advising his clients, without prej-udice. They actually found me through mywebsite. They had started their searchlocally but they couldn’t find anybody whowanted to take the case. I don’t think any-one saw any value in the case because therehad actually never been a verdict in favorof an African American in the Eastern Dis-

trict in a race case. In addition, it was basedin traditionally one of the poorest coun-ties in the United States where juries arethought to be very stingy. So, I don’t thinkanybody wanted this case

ND. Why did you take the case?

JF. For me this was a proof-of-conceptcase. I’ve always thought that potentiallyan area of great value for plaintiffs is hostile-work-environment cases, wherepsychological and perhaps even physicalinjury is the principal damage.

And, you know, in this case I had 26people who had been subjected to anextremely hostile work environment. And,what I did was I brought in a forensic psy-chiatrist to evaluate all of them. Notsurprisingly, working in that environment,they had suffered a lot of injury. I was pre-pared to put on all their friends and family,spouses, everybody who’d gone throughthis with them, to talk about how workingthere completely destroyed their relation-ships with their spouses. We had anepidemic of divorce in this group duringthe period that they were working there.So, I saw this really as sort of a proof-of-concept case from my idea that even verylow-income people with no loss of wagescan recover significant awards for emo-tional pain and suffering.

I wanted to approach these cases thesame way a personal injury lawyers does,and argue that the value in these cases is inthe injury done to the plaintiff. So, this wasa pretty good test, because if you can get$180,000 for each plaintiff for emotionalpain and suffering in the Eastern District ofVirginia, then I think it works.

ND. What would you say was the mostchallenging aspect of the case?

JF. Well, being a solo practitioner and rep-resenting 26 individual plaintiffs in a casewhere the defendant produced well over100,000 documents, without any supportstaff, handling the entire thing myself.

ND. How did you manage to do that?

JF. I made Bill Gates my partner…. Wehad everything scanned, and I put the entirecase on my laptop, and I went down to Vir-ginia, and I basically spent three monthsdown there. I conducted 40 depositionsmyself, including all 26 of my clients back-to-back, literally every day of the week.

And the rest of them, it was another 15 or18 or so, the defendants, I conducted thoseliterally every other day. It was like amarathon for me. The pace was dictatedby the trial schedule in the Rocket Dock-et, but the advantage was that I had all thefacts fresh in my mind going into trial andsummary judgment.

ND. What would you say were the lessonsthat you learned while working on thecase? Personally, but also perhaps that youthink others could benefit from?

JF. Well, I guess one thing is that as a prac-tical matter, it makes sense to do everythingelectronically, have everything scanned. Iam putting together a NELA Nite with afirm that handles electronic document dis-covery, I am going to share everything Ilearned about going paperless, all the tech-nology. Solos can do it cheaply. It justmakes life a whole lot easier. I think thatthis case demonstrates that this is a goodmodel for litigation, the idea that we shouldfocus a lot on the psychological injurycaused on our clients in order to help ourclients maximize their returns.

I guess the other thing that I would addis that this was an extraordinarily enrich-ing experience for me, working with 25people, getting to know every single oneof them. Understanding what they wentthrough really changed my outlook onwhat I do, as an employment lawyer.

ND. Can you talk about what other mem-orable experiences you have had as anattorney that you might want to share withothers?

JF. The case that I’m working on now withthe University Club case has been prettyextraordinary because what I did was I hada very vulnerable group of plaintiffs: extrabanquet servers, women who call and findout whether they have work on a weeklybasis, can be told by their captains if theydon’t.

These plaintiffs can’t afford any retal-iation. They couldn’t even afford to besuspended with pay while they were inves-tigating their allegations, because it wouldhave meant that they would have lost thetips that they get. These women were twoor three weeks of unemployment awayfrom a homeless shelter. So, what I had to

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26

do in this case was make a motion for aprotective order, and ask for a temporaryrestraining order to prevent the Club fromin any way reducing their compensation,or taking any retaliatory action againstthem, at the very outset of the case, theday I filed the case. This was even beforeI had any proof of retaliation. I had to askbasically the judge just to make the orderbased upon the extraordinary vulnerabil-ity of the clients. And she did, and now thedefendants are violating the order, and weare in the process of prosecuting a con-tempt motion as to that violation.

Also, getting what was briefly the high-est pain and suffering award at theNYSDHR, $500,000, before the 1stDepartment knocked that down to$125,000 because it was “too large.” TheGC at the Division, told me the case wasa road map for the use of experts and factwitnesses in proof of pain and suffering.That was what gave me the idea that in theabsence of high salaried clients, the besthope for a large damage award is proof ofpain and suffering.

INTERVIEW WITH ANNE GOLDEN &

CARMELYN MALALISOutten & Golden, LLP

Rotondo v. City of New York

ND. Please would you summarize the case.

AG/CM. Rose Rotondo fought for 15years to overcome the debilitating multi-ple sclerosis that afflicted her at the age of21. She wanted, more than anything, to beable to work—and at 36 she was finallyasymptomatic enough to take a positionas a school aide at a high school in Brook-lyn. But the job that she so valued becamea lost dream when she was sexuallyassaulted by the school principal in a vaultin the sub-basement of the school. He hadtold her she had to go there with him tofind some typewriter parts; then he lockedher in and tried to rape her. She escapedonly by chance. With incredible bravery,Rose not only reported the attack to thepolice but, at their request, wore a record-ing device and met with the perpetratoragain, and he admitted his crime on tape.He was arrested and pleaded guilty, and

he served one day in jail. But the attackstripped Rose of her ability to work andexacerbated all the MS symptoms she hadovercome. She had to drop out of collegeand has never been able to work again. Inthe face of this life-altering incident, Rosehad the strength to confront the Board ofEducation in a lawsuit for negligence andsexual harassment. Instead of offering tocompensate her, the City fought her all theway. Throughout the trial, she saw formerfriends—who still work for the Depart-ment of Education—testify for the City,avoiding eye contact with her. She learnedfor the first time from the testimony of herneurologist at trial that the effects of theattack would soon confine her to a wheel-chair. Despite the pain of the attack and ofthe trial itself, Rose arrived at court everymorning determined to hold the Cityaccountable for its inaction. Rose’s willpower paid off—on the fourth day of thetrial, the case was settled for $1.5 million.

ND. How did you get the case?

AG. Roy Karlin, a NELA/NY member,called me to ask whether we would be trialcounsel. I found out more about the case,interviewed Rose, discussed it with mypartners, and said yes. At that point, alldiscovery had been completed. The for-mer school principal—who had been firedafter his arrest—defaulted in the civil suitand had been precluded from testifying.

ND. What was the most challenging aspectof the case?

AG. It may sound strange, but certainlyone of the most challenging aspects of thecase was opposing counsel, the AssistantCorporation Counsel. She was from theTort Division of Corporation Counsel’soffice, and she did not seem to have muchexperience with employment law. Here’sone example. During jury selection, sherefused to agree to a challenge for causebecause she agreed with the blatant prej-udices of one prospective juror—becauseit was in the Bible!

CM. I agree with Anne that it was chal-lenging to work with an adversary withlittle employment law experience. Thiswas my first case against a public employ-er and I also found that challenging as theCity allowed the case to linger on withoutany apparent incentive to resolve it.

ND. What lesson have you learned whileworking on the case?

AG. Every case and matter that I haveworked on has taught me more lessonsabout human nature, the diversity ofhuman experience, and the courage ofwhich some individuals are capable. Rosewas one of the most gallant persons I haveever met.

CM. This was my first trial experience asan advocate, and my first state court expe-rience at all. Gearing up for trial was filledwith many lessons, but state court voir direwas probably the most enlightening expe-rience for me. Prospective jurors andopposing counsel were quite candid abouttheir personal biases and prejudices. Afterthe case was settled, we had an opportu-nity to poll the jury. I was fascinated to seehow individual biases informed jurors’interpretation of testimony and how theyexperienced the witnesses and lawyers.

ND. What was your most memorableexperience as a lawyer?

AG. This is a very tough question. I’vehad so many. My best moments happenwhen someone who has been mistreatedor abused at work gets out of the situation,preferably with severance pay or whatev-er else he or she needs and wants, andthanks me. One of my favorite suchinstances was when I advised a female uni-versity professor who had been deniedtenure, and who had also discovered thatshe was paid substantially less than themale professors at the same level. I ghost-wrote some memos for her and coachedher about how to make her case to theadministration, but never appeared on herbehalf—because she wanted to stay there.She called me later to say that she had beengranted tenure and her salary had beenretroactively raised to the level the menreceived. I was so thrilled and delightedthat I’ve never forgotten that thank-you.

CM. I have fortunately had many mem-orable experiences as a lawyer vis-à-visclients. Especially now as an employmentlawyer, I find that every client bringsher/his own interesting narrative, and withit, another life lesson for me specificallyas a lawyer and generally as a person. Ialso experience many memorable

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27

and doffing of protective gear is general-ly compensable. Similarly, the court heldthat butchers’knife-sharpening performedbefore and after the butchering constitut-ed principal activities. Mitchell v. KingPacking Co., 350 U.S. 260 (1956).

Over the years, courts applying the inte-gral and indispensable language haveanalyzed such factors as whether the activ-ities were performed for the benefit of theemployer or the employee and whetherthey controlled or required by the employ-er. See, e.g., Holzapfel v. Town ofNewburgh, 145 F.3d 516 (2d Cir. 1998)(analyzing compensability of time spentby K-9 officers caring for dogs boarded atofficers’homes with reference to these fac-tors). Similarly, time spent driving fromthe employer’s office to a remote work-site is integral and indispensable (andcompensable), but time spent driving toand from work is not.

In Alvarez, the employees were requiredto don protective gear and store equipmentin the locker room, and then walk to the pro-duction area. The employer paid employeesfor the donning time, but not for the subse-quent time walking. The employer arguedthat inasmuch as the Portal Act repudiatedthe Anderson rule of compensability ofwalk time prior to the commencement ofthe principal activity, the court should notrequire compensation of post-commence-ment walk time and that a regulatoryfootnote justified the non-payment.

The court rejected the employer’s argu-ments and held that any activity that isintegral and indispensable to a principalactivity is itself a principal activity; walk-ing time occurring between the beginningof the first principal activity and the endof the last is compensable.

Now that you have read my descrip-tion of the history of compensable time,you may be wondering how Alvarezreached the Supreme Court. This historymakes the court’s holdings look obvious,predictable and required by prior caselaw.Well, they weren’t. The First and NinthCircuits had reached different results.

As noted, non-compensable meansmerely that compensation is not required,not that compensation is forbidden. Underthe Portal Act, some preliminary andpostliminary activities are compensableunder custom, practice or collective bar-gaining agreement. 29 U.S.C. § 254(b)(2).The strength of unions in the Americanworkplace has declined catastrophicallyat the same time that new managementtechniques have revolutionized the pro-duction line, thereby undermining customand practice.

IBP is Tyson Foods, the poultry proces-sor. The amount of time at issue wassignificant—a few minutes per workerrepeated many thousands of times per day.The poultry industry has devoted signifi-cant resources to inviting courts to revisitSteiner and its progeny and to finish thejob Congress started in passing the PortalAct, i.e. to eviscerate (a word never usedin the poultry-processing cases) the FLSA.Although the employers’ briefs arguedsimply that the principal activity is poul-try processing, not donning protective gear,the industry advanced policy-based argu-ments for why the sky would fall if thewalk time were held to be compensable: arule requiring compensation of employeetime spent complying with safety precau-tions would discourage employers fromemploying those precautions.

The opinion, written by Justice Stevensfor the new (and unanimous) Roberts Court

is short and succinct. It recites the historyof compensable time in much the same wayI did here. That is, the Court declined theindustry’s invitation to revisit settled caselawin an employer-friendly way. This is thereason that Alvarez is significant evenbeyond the circle of FLSApractitioners.

Those of us who concentrate in otherareas of employment law know that it isgenerally easier for employers to secureemployer-friendly rulings in times of lessthan full employment. The FLSA’s pur-pose is not to put a few extra dollars inworkers’ pockets—it is to promote fullemployment. If an employer has so muchwork to do that one person cannot do it in40 hours, then that employer has twochoices: hire a second worker or pay 150%of its usual labor cost. A rational employ-er presumably opts for the moreeconomical choice—or tries to circum-vent the law by defining certain activitiesas not “work.” Alvarez thwarts one suchattempt and so encourages poultry-indus-try employers to hire more people.

The holding that any activity that isintegral and indispensable to a principalactivity is itself a principal activity mayindicate that the Roberts Court is not hos-tile to emanations and penumbras.

Compensable time, a category thatencompasses such issues as on-call time(which is pertinent for white-collar as wellas other workers), break time, and sleeptime, will continue to raise important issuesfor many employers, employees, and theirlawyers.

Footnotes1 Non-compensable, in this context, means that the

employer is not required to pay for the time, notthat the employer is forbidden to pay for the time.

2 Spell-check says it isn’t a word, but Congress saysit is. n

FLSA, from page 1

moments while working with students andinterns interested in pursuing legal careers,and witnessing them get energized byissues and advocacy.

ND. Why did you become a lawyer?

AG. Originally I went to law school to dotraditional labor law on the union side, afterseven years in book publishing and one

year as a union organizer. I had spent 3 1/2years at Harper & Row (when it was stillHarper & Row), as a copy editor and unionofficer in its little house union. We expe-rienced a historic 17-day strike in 1973 andthen affiliated with District 65, D.W.A.(late lamented). When I realized that I couldgo to law school and learn to do what ourwonderful lawyer, Harold Cammer, did, Iwas excited beyond words and that became

my goal. After law school and a clerkship,I discovered that there were very few suchjobs, and I went to a large firm, then a bank;then I moved in 1985 into employment lawon behalf of employees. In five years as anassociate in Donald Sapir’s office, I learnedan enormous amount and felt that I hadcome home.

CM. Tough question. n

INTERVIEW, from page 26

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