In 2019, we persuaded the United States Court of Appeals to find that a man can proceed on his disability discrimination case where he alleges he was fired because he needed to take care of his infant daughter, who suffers from a serious disability. This is the first time the Court of Appeals has sustained a claim under the "associational discrimination" provision of the Americans with Disabilities Act. Kelleher v. Fred A. Cook, Inc., 949 F.3d 465 (2d Cir, 2019).
In 2018, our office assisted in upholding a jury verdict on behalf of a visually-impaired woman who was denied a reasonable accommodation at a gym in New York City. After the plaintiff prevailed at trial, the judge threw out the verdict. We were able to reinstate the verdict on appeal. Reveyoso v. Town Sports International, 162 F.3d 510 (1st Dept. 2018).
Also in 2018, our firm assisted in protecting a verdict on behalf of a disabled hospital worker who was harassed by her supervisor because of her hearing impairment. Duarte v. St. Barnabas Hospital, 2018 WL 4440501 (S.D.N.Y. 2018).
In 2015, our office assisted in upholding a jury verdict in favor of a disabled plaintiff who was terminated from his employment because he had complained that management had failed to accommodate his disability, HIV. The jury awarded the plaintiff more than $600,000 in damages. The Court of Appeals upheld the verdict on liability as well as the damages award. Muñoz v. Manhattan Club Timeshare Assn., 607 Fed. Appx. 85 (2d Cir. 2015).
In 2014, our office successfully opposed a motion for summary judgment in a disability discrimination case filed by a public school teacher who alleged that her building was not compliant with the Americans with Disabilities Act. The court also ruled that our client had presented enough evidence to prevail on her claim that the district had failed to reasonably accommodate her disability, multiple sclerosis. The case settled prior to trial. Kane v. Carmel Cent. Sch. Dist., 2014 U.S. Dist. LEXIS 179195 (S.D.N.Y. Dec. 15, 2014).
Also in 2014, our firm successfully opposed a motion for summary judgment in Glaser v. Gap, Inc., 994 F. Supp. 2d 569 (S.D.N.Y. 2014), where the plaintiff alleged that he was terminated from his employment because of his disability, autism. This case ruled that recent revisions to the Americans with Disabilities Act had overruled prior court decisions that made it easier for employers to dismiss these cases prior to trial. Our client settled the case prior to trial.
In January 2009, our law firm prevailed at trial in representing a disabled man who worked for City of Newburgh. The client was visually-impaired and was fired from his position which he could not successfully perform because of his disability. However, he asked management if he could work in a different position with the City. He was told that no position was available. In fact, a position in Department of Public Works opened up, and no one told him about it. At trial, we proved that our client was capable of performing the job responsibilities with Department of Public Works. The federal jury agreed, awarding our client nearly $200,000 in damages for lost wages and pain and suffering. Hursey v. City of Newburgh, 07 Civ. 1374 (CS).
In 2009, our firm settled a federal lawsuit against Town of Mount Kisco, alleging that it did not have a policy in place to help hearing-impaired crime victims understand justice court proceedings. In this case, our client was the victim of an abusive husband. When she pressed charges against him, the district attorney’s office prosecuted him for battery. But when our client went to court for the sentencing, she was not able to follow the proceedings because the Town did not have an interpreter. Our lawsuit alleged that the lack of any formal policy on the use of interpreters for hearing-impaired crime victims violated the Americans With Disabilities Act. The case settled, with the Town agreeing to implement an interpreter policy. Silva v. Town of Mt. Kisco, 08 Civ. 184 (SCR).
In January 2006, our law firm prevailed at trial in representing a disabled woman who worked for Family Health Center in Newburgh. Our client had epilepsy. A few days after she began her new job with Family Health Center, she told her boss about her disability to ensure that management knew what to do in case she had a seizure. Shortly after that conversation, our client was fired. While Family Health Center claimed at trial that our client was fired for poor job performance, we proved to the jury that the real reason for her termination was her disability. The federal jury awarded our client approximately $30,000 in pain and suffering and lost wages. The jury also imposed punitive damages against the employer. Michetti v. Family Health Center, 05 Civ. 3148 (LMS).
In 2006, we sued Town of New Paltz in federal court because its justice court did not allow for disability access. Our client was a disabled woman who regularly observed court proceedings as both a concerned citizen and advocate for criminal defendants. But she could enter the building because there was no wheelchair ramp or any other handicapped access. The bathroom in the courthouse was also inaccessible to persons in a wheelchair. The Town settled the lawsuit, agreeing to install a chairlift that would allow our client and other disabled people to enter the building. The Town also reconfigured the bathroom to make it accessible for the disabled. McGovern v. Town of New Paltz, 06 Civ. 845 (DNH).
In December 2008, our firm prevailed in a federal sexual harassment lawsuit against a business located in Middletown, New York. This was a "he-said she-said" case, where our client claimed that her supervisor subjected her to sexual groping and propositions. Our client resisted these advances and complained about the harassment to the human resources office. The jury believed our client’s account, awarding her damages for pain and suffering. This case was unique in that we relied on a relatively obscure theory of employer liability. In most cases, if the employee complains about supervisory sexual harassment and management promptly takes care of the problem, the employee is without any legal remedy. Relying on cases from around the country, we argued that since the harasser was a "proxy" or "alter ego" for the company, the company was automatically liable for the harassment because the supervisor’s actions were equivalent to the company’s actions. This theory only applies when the supervisor is a high-level manager, i.e., vice president or partner. Although the defendant argued at trial that it promptly investigated the internal harassment complaint, the jury ruled in favor of our client because the harasser was a proxy for the company. In May 2012, the U.S. Court of Appeals upheld the verdict in favor of Townsend, holding for the first time in this jurisdiction that an employer is automatically liable under Title VII of the Civil Rights Act of 1964 when a proxy, or high-ranking company official, causes the hostile work environment. Townsend v. Benjamin Enterprises, 679 F.3d 41 (2d Cir. 2012).
In February 2009, our firm prevailed in a state court sexual harassment lawsuit against a small business. This was a classic "he-said she-said" case, with the plaintiff alleging that her boss groped her and routinely subjected her to offensive sexual propositions. Her work environment was so bad that she quit the job after only a few weeks. The jury ruled in our client’s favor, awarding her damages for pain and suffering. What made this case unique was that the employer filed for bankruptcy in the middle of trial, which automatically stayed any proceedings. We had to act fast or we would lose the jury and have to start over once the bankruptcy proceedings ended, a process that can take years. We immediately filed an emergency petition with the federal bankruptcy court and persuaded the bankruptcy judge to temporarily lift the stay so that we could finish the trial. The jury ruled for the plaintiff in finding that she had been sexually harassed. Cheathem v. Great American Brochure and Catalogue Co., Index No. 0513/05 (Orange County Supreme Court). The verdict was affirmed by the Appellate Division in November 2012. 100 A.D. 3d 819 (2d Dept. 2012).
In 2010, our firm prevailed in the United States Court of Appeals in reinstating a sexual harassment case filed by a Verizon employee who was subjected to offensive comments from her supervisors and assigned unequal work responsibilities. Among other things, this case stands for the proposition that not all sexual harassment is sexually-explicit, and can instead take the form of unequal work assignments. The case then settled prior to trial. Pucino v. Verizon, 618 F.3d 112 (2d Cir. 2010).
In 2019, we assisted in protecting a jury verdict in favor of a woman who prevailed at trial on her sexual harassment and retaliation claim. The jury awarded the plaintiff more than one million dollars in pain and suffering on her claims. We were able to persuade the trial court to uphold the verdict. We also protected the seven-figure verdict. The trial court reduced the verdict to $1.25 million, one of the highest sexual harassment verdicts accepted by a federal court in New York City. Tulino v. City of New York, 2019 WL 3810975 (S.D.N.Y. Aug. 1, 2019).
In September 2008, our firm successfully co-litigated a federal age discrimination case against the New York City Board of Education. The jury agreed that three of our clients – public schoolteachers – were discriminated against in their assignments. This case was unique for several reasons. First, none of the plaintiffs who prevailed at trial were fired or demoted. Normally, in employment discrimination cases, the plaintiff cannot proceed with an “adverse employment action” which typically entails the loss of money. The adverse actions in this case included unsatisfactory performance evaluations. We persuaded the jury that these unsatisfactory evaluations were adverse actions under the employment discrimination laws because they disqualified the teachers from handling extracurricular paid positions. The case was also unique in that we persuaded the judge that age discrimination plaintiffs may bring their lawsuits under the U.S. Constitution and not just the Age Discrimination in Employment Act. Shapiro v. New York City Department of Education, 561 F. Supp. 2d 413 (S.D.N.Y. 2008).
In 2003, we persuaded the U.S. Court of Appeals to reinstate an age discrimination lawsuit against a private school. The case was dismissed by the trial court on a motion for summary judgment. The Second Circuit Court of Appeals ruled in favor of our client in finding that a jury could agree that she was terminated from her position because of her age. After we prevailed on appeal, the case settled before trial. Ferrell v. Leake & Watts Services, 83 Fed. Appx. 342 (2d Cir. 2003).
In 2016, we successful prevailed in the Court of Appeals on behalf of a woman who claimed she was discriminated against on the basis of her pregnancy. This was the first federal appeals case in the country to interpret the Pregnancy Discrimination Act in the wake of the U.S. Supreme Court's ruling in 2015 that clarified the legal standards governing these cases. Legg v. County of Ulster, 820 F.3d 67 (2d Cir. 2016).
In 2004, our firm successfully reinstated a gender discrimination case that made headlines because it was the first time the U.S. Court of Appeals ruled that discrimination against caregivers violates the civil rights laws. In this case, our client, a public school psychologist, alleged that she was denied tenure because management decided that she would not be committed to her position since she was raising young children. After the trial court dismissed the case, the Second Circuit reinstated it, finding that Title VII of the Civil Rights Act of 1964 and the U.S. Constitution prohibits this kind of gender stereotyping. Back v. Hastings-on-Hudson School District, 365 F.3d 107 (2d Cir. 2005).
In 2008, we successfully opposed a motion for summary judgment in a gender discrimination case against Vassar College on behalf of a woman who claimed she was subjected to a hostile work environment and retaliation for complaining about that environment. The case settled prior to trial. Krikelis v. Vassar College, 581 F. Supp. 2d 476 (S.D.N.Y. 2008).
In 2006, we represented a woman who claimed that the Town of Warwick refused to hire her because she was a woman. The plaintiff sought employment with the Department of Public Works. She argued that the Town’s “old boy’s club” did not want a woman handling these job responsibilities. The case settled on the eve of trial. Hoge v. Town of Warwick, 05 Civ. 4730 (MDF).
Fourth Amendment & Unlawful Arrest
In 2020, a federal court in Albany ruled that our client may proceed in his multi-claim police misconduct case against city and county employees, including police officers, who removed our clients' children from a hotel where they were staying and arrested the parents, among other police abuses. Callwood v. City of Kingston, 2020 WL 2838602 (N.D.N.Y. June 1, 2020).
In 2018, we prevailed in the United States Court of Appeals, which reinstated our false arrest case involving a teacher who was arrested for endangering the welfare of a child in the course of her teaching duties. After the trial court dismissed the case, the Court of Appeals accepted our argument that the jury may find the police lacked probable case to arrest the plaintiff. Pehush v Ashworth, 757 Fed. Appx. 47 (2d Cir. 2018).
In 2015, we prevailed in a civil rights case against the County of Orange after proving that, without probable cause, the County had violated the Fourth Amendment in unlawfully seizing a child for questioning without her parents’ knowledge in the course of a child abuse investigation. Phillips v. County of Orange, 2015 WL 5781646 (S.D.N.Y. Aug. 19, 2015).
Also in 2015, in a case that generated national attention, we prevailed in a First Amendment case after our client was arrested for writing offensive comments on a traffic ticket payment form. Although the police charged our client with Aggravated Harassment, we succeeded in having the charges dismissed in criminal court. We then filed a civil rights case in Federal court, which ruled that the plaintiff’s arrest for that speech was unconstitutional. This case was unique in that the federal court rejected the prosecutorial immunity defense and instead ruled that the prosecutor could be held liable for the plaintiff’s civil rights violation. Barboza v. D’Agata, 2015 WL 9256974 (S.D.N.Y. Sept. 10, 2015).
Public Employees: Whistleblowers and Freedom of Association
In 2011, our firm prevailed in the United States Court of Appeals in reinstating a First Amendment retaliation lawsuit filed by a probationary City of Middletown police officer who was denied a permanent position because he refused to falsify his eye-witness report that implicated a sergeant in police brutality. This case was the first time the Court of Appeals ruled in favor of a public employee whistleblower claim since the Supreme Court in 2006 made it more difficult for plaintiffs to prevail in these cases. Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011).
In May 2014, our firm prevailed in the New York Court of Appeals in arguing that a private employee had alleged a viable claim against a nursing home that had retaliated against her for speaking out against serious public health and safety violations. This case had been dismissed by the Appellate Division, First Department, in Manhattan. Our firm persuaded the Court of Appeals to hear the case. After arguing the appeal, the Court of Appeals ruled in our favor. In the process, the Court of Appeals clarified the law governing the drafting of whistleblower lawsuits. Webb-Weber v. Community Action for Human Servs., Inc., 23 N.Y.3d 448 (2014). Video of the oral argument can be found at this link.
In 2009, our firm settled a lawsuit alleging that a state parole officer was retaliated against for complaining about sex discrimination in the workplace. When defendants sought to dismiss the case prior to trial, the district court rejected that motion and agreed with our firm that a jury could find that the plaintiff could prove retaliation in the terms and conditions of her employment even though she was not fired from her job. Flynn v. New York State Division of Parole, 620 F. Supp. 2d 463 (S.D.N.Y.2009).
In 2006, a federal court in Albany, New York, ruled in our client's favor when she alleged that a "chain of command" speech code violated the First Amendment to the U.S. Constitution. The speech code prevented public school teachers from speaking out on matters of public concern without first clearing that speech with a supervisor. The federal court enjoined enforcement of the speech code. Price v. Saugerties Central School District, 2006 U.S. Dist. LEXIS 8329 (N.D.N.Y. Feb. 9. 2006).
In 2005, our firm successfully defended a jury verdict in favor of a City of Yonkers employee who was fired after she had associated with a mayoral candidate who ran against the incumbent mayor. The jury found that after the City reorganized its workplace, it failed to reinstate the plaintiff in retaliation for her protected political association. Although the case prevailed at trial on the basis of circumstantial evidence of the mayor's involvement in retaliating against our client, the Court of Appeals sustained the verdict. Gronowski v. Spencer, 424 F.3d 285 (2d Cir. 2005).
In 2003, the Second Circuit Court of Appeals ruled in our client's favor in a case alleging that he was fired from his position as Orange County's jail administrator after he truthfully testified in a lawsuit filed by two nurses who claimed the jail's medical provider was overmedicating inmates. In this case, the Court of Appeals ruled that the First Amendment prohibits government employers from retaliating against witnesses who testify truthfully at trial. The case then settled prior to trial. The plaintiff's widow later received a "courageous plaintiff" award from the New York chapter of the National Employment Lawyers' Association. Catletti v. County of Orange, 334 F.3d 225 (2d Cir. 2003).
In 2001, Helen G. Ullrich, Esq., prevailed at the trial in which the Orange County Jail Administrator testified on behalf of the nurses who worked at the Jail. This First Amendment whistleblower lawsuit alleged that two nurses were fired after they complained about the jail's medication practices for mentally-ill inmates. The jury awarded the nurses more than a million dollars in damages. The case settled post-trial. Berweger v. County of Orange, 121 F. Supp. 2d 334 (S.D.N.Y.2000).
In 2004, our firm was presented a unique case involving the Due Process Clause of the U.S. Constitution. The New Windsor Town Supervisor had seized the ambulances and equipment used by the non-profit New Windsor Volunteer Ambulance Corps. The Town argued that it owned the vehicles and equipment because NWVAC purchased it with money from its contract with the Town. Our firm argued that the property legally belonged to NWVAC and that the Town seized it without pre-deprivation notice as required under the Due Process Clause. Without any precedent to rely upon in deciding this case, the trial court agreed with us that the Town had violated NWVAC's rights. The court ordered that the Town return the vehicles and equipment. The Court of Appeals affirmed the trial court's ruling. New Windsor Volunteer Ambulance Corps.v. Meyers, 442 F.3d 101 (2d Cir. 2006).
In a unique case involving the due process rights of private union members, we prevailed at trial in defending a union worker who was sued by the union for allegedly working outside union rules. The employee countersued because the due process hearing into the charges against him were a sham. The jury agreed with our client and awarded him damages. Although few precedents covered this precise case under the Labor-Management Reporting and Disclosure Act (LMRDA), the Court of Appeals sustained the verdict, ruling that the union violated our client's rights. Local 38 v.Pelella, 350 F.3d 73 (2d Cir. 2003).
First Amendment: Public Speech and Prior Restraints
We have successfully challenged restrictions against public assemblies on public property. In 2008, a federal court agreed with us that a de-facto town square in an Orange County village was suitable for public assemblies and that the municipality violated our client's rights in preventing her from holding a peace rally there. The court also ruled that the Town violated the First Amendment in requiring indigent protesters to take out a cost-prohibitive insurance policy before holding public assemblies on municipal property. Coe v. Town of Blooming Grove, 567 F. Supp. 2d 543 (S.D.N.Y. 2008). The Court of Appeals upheld that ruling in 2011, holding that the Town had improperly engaged in viewpoint discrimination in preventing our client from staging a rally on Town property. 429 Fed. Appx. 55 (2d Cir. 2011).
In December 2011, we prevailed in representing a First Amendment plaintiff who was prevented from leafleting at a Town of Kent Community Day. The federal court in White Plains held for the first time in our jurisdiction that laws prohibiting windshield political leafleting violate the First Amendment. Robinson v. Town of Kent, 835 F. Supp. 2d 1 (S.D.N.Y. 2011).
This firm has successfully challenged restrictions against the placement of political signs on private property. In 2002, our firm successfully struck down as unconstitutional various political sign laws in Orange County on behalf of a woman who was running for Orange County District Attorney. These sign laws favored commercial over political speech and otherwise imposed burdensome rules in order to post political signs on private property. Sugarman v. Village of Chester, 192 F. Supp.2d 282 (S.D.N.Y. 2002). A few months later, our firm successfully challenged a Village of New Paltz sign ordinance that made it harder for residents to post political signs. Savago v. Village of New Paltz, 214 F. Supp. 2d 252 (N.D.N.Y. 2002). We prevailed in a similar lawsuit in 2005, persuading a federal judge that Village of Cold Spring violated the First Amendment in imposing burdensome requirements for a homeowner to post political signs at his home. Lusk v. Village of Cold Spring, 418 F. Supp. 2d 314 (S.D.N.Y. 2005). In that case, we also prevailed in the Court of Appeals in arguing that the procedures for posting political signs on private property violated the First Amendment. Lusk v. Village of Cold Spring, 475 F.3d 480 (2d Cir. 2007).
In 2015, we again struck down a municipal ordinance that placed restrictions on how and where residents could place their political signs. Marin v. Town of Southeast, 2015 U.S. Dist. LEXIS 133813 (S.D.N.Y. Sept. 30, 2015).
We have successfully persuaded judges to dismiss defamation cases against our clients, many of whom were being sued by public officials and private developers who were offended by our clients' public comments.
In one case, a state judge dismissed a lawsuit brought against a community activist who criticized a public official at a town meeting. In another case, we succeeded in dismissing a defamation case brought against a lawyer who allegedly called another lawyer a "welcher" in public. Murphy v. Kulkin, 2005/04 (Orange County Supreme Court).
In 2005, we convinced a defamation plaintiff to drop his complaint against our client who allegedly criticized a developer at a public meeting. We invoked the New York law against Strategic Lawsuits Against Public Participation in our motion to dismiss, which the developer chose not to oppose. Muller v. Abbott, 2215/04 (Putnam County Supreme Court).
In another unique case, we persuaded the Appellate Division in Albany to dismiss a lawsuit filed by a Town judge against a Sullivan County artist who caricatured the judge as the devil. The judge-plaintiff argued that the parody was both defamatory and made use of the judge's likeness without his consent, in violation of state law. The appellate court ruled that the painting was protected parody under the First Amendment and it therefore could not form the basis for a lawsuit. Altbach v. Kulon, 302 A.D.2d 655 (3d Dept. 2003).
Sexual Orientation and Transgender Discrimination
In 2018, we assisted in establishing that sexual orientation discrimination violates Title VII of the Civil Rights Act of 1964. This made the Second Circuit Court of Appeals only the second federal appeals court in the country to interpret federal law this way. The Court convened en banc in issuing its ruling, which means all 13 judges on the court heard the case at once, as opposed to the usual three-judge panel. Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018).
The Zarda case went to the United States Supreme Court. In 2020, we were on the legal team that prevailed in the Supreme Court, which ruled for the first time that discrimination on the basis of sexual orientation and transgender status is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. This landmark ruling involved three cases which the Supreme Court consolidated as Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Zarda was among the cases decided that day.
In 2015, we successfully represented a transgender woman who was fired from her job because her employer had objected to her gender identity. The New York State Division of Human Rights ruled that our client was entitled to back pay and damages for pain and suffering. The State Division also fined the employer for this civil rights violation. In 2018, the Appellate Division upheld the findings of the State Division of Human Rights. Fuller v. Advanced Recovery, 162 A.D.3d 659 (2d Dept., 2018).
In 2006, the Court of Appeals ruled in favor of our client, a public school teacher who sued his school district for age discrimination. The court did not rule on the merits of the claim, however. Instead, it ruled on a procedural question raised by the school district under the Eleventh Amendment to the U.S. Constitution, which holds that plaintiffs cannot sue the state in federal court. The question in this case was whether board of education constitute "arms of the state" under the Eleventh Amendment. The Court of Appeals ruled that boards of education are not arms of the state and that our client could therefore pursue his age discrimination suit in federal court. Woods v. Rondout Valley Board of Education, 466 F.3d 232 (2d Cir. 2006).