Recent Decisions of Interest – Fall 2017

Contributed by Eric M. O’Bryan and Eric J. Weinhold – Albany Law School, Class of 2018

Consumer Protection

Kommer v. Ford Motor Co., 17-CV-0296(LEK/DJS) (7/28/17) – Putative class action for deceptive acts and false advertising under NY General Business Law §§ 349 and 350 arising from Plaintiff’s purchase of a 2015 Ford F-150 XLT Super Crew truck with faulty door handle problems based on Ford’s “Built Ford-Tough” advertisements. Granting Defendant’s motion dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), the Court found that (1) Defendant’s “Built Ford-Tough” slogan was mere puffery because the slogan was a generalized claim and made no reference to the quality of the vehicle’s door handles, (2) Plaintiff incurred no out-of-pocket expenses to repair the vehicle because the warranty covered all such expenses, and (3) Plaintiff’s price-premium theory of injury was defeated by the fact that Defendant provided an adequate remedy for the problem.

McManus v. Tetra Tech Constr., Inc., 16-CV-0894(LEK/DJS) (5/11/17) – Action by employee against company asserting claim of unlawful retaliation in violation of the Dodd-Frank Wall Street Reform and Consumer Protection Act’s whistleblower-protection provisions. Denying Defendant’s motion to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), the Court found that Plaintiff alleged facts plausibly suggesting that (1) he engaged in protected activity by emailing an Executive Vice President of Defendant regarding his belief that Defendant’s accounting practices violated federal securities law, (2) he suffered an adverse employment action by receiving telephone calls from two Vice Presidents of Tetra Tech notifying him that he “had no future in the organization” and that his termination was imminent, and (3) a causal connection existed between the protected activity and the adverse action due to the temporal proximity between his complaint and the fact that the statement that he had no future with the company further supported an inference of causation.


United States v. Bell, 16-CV-0037(DNH/DWD) (N.D.N.Y. 6/27/17) – Prosecution for being a felon in possession of a firearm and possession of a firearm with an obliterated serial number, filed after the dismissal of firearm charges against Defendant in Onondaga County Court and the re-arrest of Defendant by federal authorities. The Court granted Defendant’s motion to suppress (1) evidence recovered during his initial arrest on state charges and (2) inculpatory statements he allegedly made to law enforcement agents before his initial appearance in federal court. Regarding the first motion, the Court reasoned that the handgun and post-arrest statements that were derived from Defendant’s initial arrest were seized in violation of the Fourth Amendment, because the officer lacked reasonable suspicion to arrest Defendant (based on his huddled interaction with a driver of a vehicle in a high-crime area). Regarding the second motion, the Court reasoned that the statements and confession the Defendant gave before his initial appearance were caused by the Government’s unnecessary delay (of 13 hours) in presenting him to a United States Magistrate Judge under Fed. R. Crim. P. 5(a)(1)(A), which led to an involuntary confession.

United States v. DeWolf, 17-MJ-0003(ATB) (5/3/17) – Proceeding to return Defendant to Court for a supervised-release revocation hearing. The Chief District Judge adopted the Report-Recommendation of the Magistrate Judge recommending that (1) the District Judge find Defendant competent to go forward with proceedings (because Defendant failed to, by a preponderance of the evidence, establish that he was suffering from a mental disease or defect rendering him mentally incompetent to the extent that he was unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense), and (2) issue an Order removing Defendant to the Eastern District of Wisconsin for further proceedings related to his alleged violations of his conditions of supervised release.

Education – Disabilities

GV v. Bd. of Educ. of W. Genesee Cent. Sch. Distr., 15-CV-1173(GLS/TWD) (7/25/17) – Action by parent of child under age 18 with Down syndrome and attention deficit hyperactivity disorder against School District and Board of Cooperative Educational Services for the repeated use of physical restraints and seclusion against the child, asserting claim under Section 504 of the Rehabilitation Act (“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”). The underlying proceeding (during which both parties were represented by counsel) was presided over by an impartial hearing officer (“IHO”), who issued a 35-page decision. Both parties sought review of the IHO’s decision by a state review officer (“SRO”), who found no violation of either Section 504 or the ADA. Plaintiff then filed this action against Defendant. Granting Defendant’s motion for judgment on the pleadings under Fed. R. Civ. P. 12(c), the Court found that (1) Plaintiff had a full and fair opportunity to adjudicate his claims before the IHO and SRO, and thus, res judicata barred Plaintiff’s claims, and (2) even if res judicata did not bar Plaintiff’s claims, the doctrine of collateral estoppel would bar Plaintiff’s claims.

Environmental – Clean Water Act

Zdziebloski v. Town of E. Greenbush, 14-CV-1043(FJS/CFH) (5/11/17) – Action by homeowners against the Town of East Greenbush claiming that it violated the Clean Water Act (“CWA”) by causing the flooding of, and discharge of pollutants into, a body of water on their property called “Sheila’s pond,” which they allege is a “water of the United States” as defined by the CWA. Granting Defendant’s motion for summary judgment under Fed. R. Civ. P. 56, the Court found that the only admissible rationale that Plaintiffs had for why “Sheila’s pond” should be considered a “water of the United States” is that water, including fish and turtles, from the pond had been pumped to a tributary of the Hudson River on two separate occasions. The Court further found that the pond would fail to meet Justice Scalia’s test in Rapanos v. U.S., 547 U.S. 715 (2006), as well as Justice Kennedy’s test in Rapanos: the mere pumping of water from the pond to the tributary was not enough to render the pond a “water of the United States” under the CWA.

Housing Discrimination

Rehabilitation Support Servs., Inc. v. City of Albany, 14-CV-0499(LEK/DJS) (7/28/17) – Action by not-for-profit corporation that provides residential services claiming that the City of Albany’s zoning ordinance as it applies to community residences violates the Federal Housing Act and Title II of the Americans with Disabilities Act. Plaintiff intended to construct two residences, each housing 12 persons, for people recovering from alcoholism or substance abuse. The location of the planned housing structures was in the City’s “R-2A” zone, which is a one- and two-family residential district. Defendant denied Plaintiff’s application for a use variance. Granting Defendant’s motion for summary judgment under Fed. R. Civ. P. 56, the Court found that, among other things, Plaintiff failed to present evidence allowing a reasonable jury to find that the City’s ordinance is facially discriminatory.

Intellectual Property — Copyright

Univ. Instruments Corp. v. Micro Sys. Eng’g, Inc., 13-CV-0831(GLS/DEP) (8/8/17) – Action by designer and manufacturer of advanced automation and assembly equipment solutions asserting federal claims of copyright infringement and state law claims for wrongful use of Plaintiff’s source code to make test handling systems for pacemakers and defibrillators. At trial, after the conclusion of Plaintiff’s proof, Defendants moved for judgment as a matter of law under Fed. R. Civ. P. 50. After reserving until the conclusion of Defendants’ proof, the Court granted Defendants’ motion, holding that no reasonable jury viewing the evidence most favorable to Plaintiff could find for Plaintiff on any of its claims: there was no doubt that Defendant was authorized (whether by ownership or by license) to use Plaintiff’s source code.

Labor and Employment – Employee Retirement Income Security Act

Acosta v. Byrnes, 15-CV-0093(FJS/DJS) (8/10/17) – Action by Secretary of Labor for violation of duty of loyalty, duty of prudence and duty to diversify asserts with regard to a profit-sharing plan (“Plan”), pursuant to the Employee Retirement Income Security Act. After granting Plaintiff’s motion for summary judgment with regard to liability under Fed. R. Civ. P. 56, the Court ordered the parties to file supplemental documentation regarding the calculation of restitution damages. Despite Defendant’s argument that damages could not be properly determined “because the price of stock and the mutual funds [involved] will continue to fluctuate,” the Court found that (1) damages of $310,000, as determined by a third-party retained by the Secretary of Labor, was appropriate, and (2) Defendant was liable to Plan in that amount.

Labor and Employment – Fair Labor Standards Act

Griffin v. Aldi, Inc., 16-CV-0354(LEK/ATB) (5/11/17) – Class and collective action by three store managers against grocery retailer claiming violations of the Fair Labor Standards Act and NYS Labor Law due to the misclassification of “except” employees and the failure to pay overtime compensation. Plaintiffs moved for restrictions, penalties, and other relief related to Defendant’s “communications with potential collective members,” under Fed. R. Civ. P. 23, arguing that Defendant “ha[d] been improperly disseminating [r]eleases to terminated putative class members . . . without providing any notice of their potential rights in this litigation.” Granting in part, and denying in part, Plaintiffs’ motion, the Court ordered that the parties jointly submit “a proposed corrective notice to all Aldi store managers who received separation agreements after commencement of this lawsuit but before conditional certification,” but refused to issue additional relief sought by Plaintiffs.

Weidong Li v. Ichiban Mei Rong Li Inc., 16-CV-0863(DEP) (5/4/17) – Action by deliveryman against Japanese and Chinese restaurant chain claiming violations of the Fair Labor Standards Act and NYS Labor Law due to the failure to pay minimum wages and proper overtime compensation. After the parties entered into a tentative settlement agreement, the Court found that a fairness hearing was not necessary under Fed. R. Civ. P. 23, and that approval of the settlement was appropriate.

Labor and Employment – First Amendment Association

Donohue v. Madison, 13-CV-0918(FJS/CFH) (4/14/17) – Action by union-represented employees against the NYS Thruway Authority and several executives in their individual and official capacities claiming violations of Plaintiffs’ protected status as union-represented employees under the First Amendment, arising from the NYS Thruway Authority’s execution of a reduction-in-force plan that eliminated the positions of approximately 198 union-represented employees. Granting in part, and denying in part, Defendants’ motions for summary judgment under Fed. R. Civ. P. 56, finding that (1) Plaintiffs’ First Amendment retaliation claim should be dismissed, (2) Plaintiffs’ First Amendment targeting claim should remain pending, and (3) under Rowland v. State Employees Bargaining Agent Coalition, the executives were, as a matter of law, entitled to qualified immunity with regard to the claims against them in their individual capacities.

Labor and Employment – First Amendment Retaliation

Morris v. NYS Police, 16-CV-0164(DNH/DJS) (8/8/17) – Action by forensic scientists in the NYS Police crime lab against the NYS Police and numerous NYS Police employees, asserting three categories of claims: (1) claims under 42 U.S.C. § 1983 alleging retaliation in violation of the First and Fourteenth Amendments; (2) claims under Title VII of the Civil Rights Act and related state laws for gender discrimination, retaliation, and a hostile work environment; and (3) claims under state law for defamation and libel. Granting in part, and denying in part, Defendants’ motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), the Court (1) dismissed the § 1983, NYSHRL, and common law defamation and libel claims against the NYS Police under Eleventh Amendment immunity, (2) dismissed the gender discrimination claims under Title VII against any individual Defendants in their official capacities or otherwise, (3) dismissed in part the Title VII claims against th NYS Police, (4) dismissed Plaintiffs’ claims of hostile work environment and gender discrimination under the New York Constitution and the Fourteenth Amendment, (5) found that the individual-capacity § 1983 retaliation claims survive dismissal, and (6) found that the Title VII claims of retaliation against the NYS Police and the individual state-law defamation and libel claims survive dismissal.

Labor and Employment – Gender Discrimination

Watson v. Ulster Cty., 09-CV-0550(FJS/RFT) (8/24/17) – Action by female corrections officer at Ulster County Jail pursuant to Title VII of the Civil Rights Act, the NYS Human Rights Law, and 42 U.S.C. § 1983. Denying in part, and granting in part, Defendant’s motion for judgment as a matter of law under Fed. R. Civ. P. 50 and/or for a new trial under Fed. R. Civ. P. 59, finding that (1) with respect to Plaintiff’s Title VII hostile work environment claim, the jury could have fairly concluded that she was exposed to offensive materials and inappropriate comments, which exposure was determined to be sufficiently pervasive, (2) with regard to her § 1983 hostile work environment claim, she did not present sufficient evidence that the hostile work environment was a result of a municipal policy or custom, and (3) with regard to the jury’s award of $200,000 in compensatory damages with respect to Plaintiff’s Title VII hostile work environment claim, at most her evidence demonstrated a “garden variety” emotional distress, and thus Defendant is entitled to a new trial with respect to that claim unless Plaintiff agrees to a remittitur reducing the award to $75,000.

Labor and Employment – Labor Management Relations Act

Carlisle v. United Parcel Serv., Inc., 15-CV-1376(GTS/ATB) (8/29/17) – Action asserting hybrid claim that Defendant Union breached its duty of fair representation and that Defendant United Parcel Service (“UPS”) breached the collective bargaining agreement between UPS and the Union, pursuant to Section 103 of the Labor Management Relations Act. Granting Defendant’s motions for summary judgment under Fed. R. Civ. P. 56, the Court found, inter alia, that (1) a rational factfinder could not infer that Plaintiff was subject to discrimination based on the penalties he received for his rule violations (compared to those received by any other employees) because the penalties imposed were a function of his specific progressive discipline, and (2) a rational factfinder could not infer that the Union’s representation of Plaintiff fell so far outside a wide range of reasonableness as to be irrational, or that the Union’s conduct was arbitrary, discriminatory, or undertaken in bad faith.

Labor and Employment – Pregnancy Discrimination

Legg v. Ulster Cty., 09-CV-0550 (FJS/RFT) (7/27/17) – Action by corrections officer at the Ulster County Jail asserting a disparate impact claim under the Pregnancy Discrimination Act after she was denied light-duty assignments during her pregnancy. Following a jury trial, the Court dismissed Plaintiff’s disparate impact claim, rejecting Plaintiff’s argument that “pregnant women are inherently incapable of working full-duty,” and determining that she presented no evidence at trial to support that conclusion.

Labor and Employment – Racial Discrimination

Pompey-Howard v. NYS Educ. Dep’t, 15-CV-1296(LEK/DJS) (7/28/17) – Action by African-American Senior Professional Conduct Investigator claiming that NYSED violated Title VII of the Civil Rights Act, 42 U.S.C. § 1981, and the NYS Human Rights Law by failing to promote her, and retaliating against her, based on her race. Granting Defendant’s motion for summary judgment under Fed. R. Civ. P. 56, the Court found that (1) even when viewing the facts in light most favorable to Plaintiff, she was combative with coworkers, invaded her supervisor’s privacy, failed to work without explanation, and behaved improperly during the completion of her professional duties, (2) Plaintiff has failed to rebut Defendant’s legitimate, nondiscriminatory reason with regard to her failure-to-promote claim under Title VII, and (3) Plaintiff has failed to rebut Defendant’s legitimate, nondiscriminatory reason with regard to her retaliation claim under Title VII.

Labor and Employment – Religious Discrimination

Brooks v. City of Utica, 16-CV-1427(LEK/ATB) (7/28/17) – Action by a firefighter-paramedic for the City of Utica claiming discrimination and retaliation under Title II of the Civil Rights Act and the NYS Human Rights Law based on the City’s failure to accommodate his long hair (maintained in accordance with his Nazirite religious beliefs) in a manner similar to the manner in which it accommodates the long hair of female firefighters. Granting in part, and denying in part, Defendants’ motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), the Court found that (1) the unrealized threats of discipline against Plaintiff, and the requirement that he wear a hairnet or cap, did not rise to the level of an adverse employment action for purposes of his disparate-treatment and failure-to-accommodate claims, (2) the City ordering Plaintiff to cut his hair four days after he submitted his accommodation request was temporally proximate enough to show causation for purposes of his retaliation claim, and (3) the totality of the circumstances (especially the potential safety hazard created by the hairnet requirement) showed that the City’s actions were sufficiently severe and pervasive to state a plausible hostile work environment claim.

Labor and Employment – Sexual Harassment

Dole v. Town of Bethlehem, 16-CV-0173(DJS) (4/25/17) – Action by female police officer alleging that, during her tenure as a police officer, she was the victim of sexual harassment and a hostile work environment under Title VII of the Civil Rights Act and the NYS Human Rights Law. Granting Defendant’s motion for summary judgment under Fed. R. Civ. P. 56, finding that (1) despite Plaintiff’s receipt of unwelcome voicemails, text messages, and Facebook posts from a former romantic partner who was also a member of the police force, the harassment suffered by Plaintiff was not based on sex but arose from a failed personal relationship and (2) in any event, even assuming the harassment was based on Plaintiff’s sex, the harassment was not severe enough to support a hostile work environment claim.

Fish v. 1295 Aroxy Cleaners, 15-CV-0102(MAD/TWD) (4/26/17) – Action by former store manager against former employer alleging numerous instances of sexual harassment and assault under Title VII of the Civil Rights Act and NYS Human Rights Law. Denying Defendants’ motion for summary judgment under Fed. R. Civ. P. 56, the Court found that, viewed in the light most favorable to Plaintiff, the evidence was sufficient to support her claims, and noting that even a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment under Title VII.