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DigitalCommons@NYLS Other Publications Faculty Scholarship 4-2022 CIVIL LITIGATION - - Notes (April 2022) Arthur S. Leonard Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs
CIVIL LITIGATION notes
As a blood crisis diminishes the
blood supply within the United States, it
is incumbent upon policy makers to find
a way to mitigate any further damage.
One notable solution is to further reduce
or eliminate the MSM deferral period. attempts have been made to persuade
Seventeen other countries have moved the district court judges assigned to this
away from such a deferral, and the CIVIL LITIGATION NOTES case after Judge Walker retired (and
United States should join that growing By Arthur S. Leonard came out as gay) to unseal the video and
list. With proper planning and publicity, make it public were unsuccessful until
Arthur S. Leonard is the Robert F. Wagner
an elimination of the deferral could 2020, when the district court granted
Professor of Labor & Employment Law
create an immediate jump in blood the request as ten years had passed
donations and end the current crisis. Emeritus at New York Law School. since the trial; the court authorized
Men who have sex with men can availability of the video recording on
contribute to the ADVANCE study by U.S. SUPREME COURT – On March the internet, and a divided 9th Circuit
30, 2022, the Supreme Court docketed a
visiting its website and finding a location panel rejected proponents’ appeal on
petition for certiorari by the proponents
near them. We should all do what we grounds of standing, finding that the
of California Proposition 8, which
can to end this blood crisis and expand proponents had failed to demonstrate
voters approved in 2008 to amend the
eligibility for blood donations. ■ any tangible injury from the unsealing
California Constitution to overrule a
of the video. The dissent argued that
California Supreme Court marriage
Corey L. Gibbs is an LL.M. Candidate intangible injury to reputation also
equality decision issued earlier that year.
in New York Law School’s Tax Program. should count for standing purposes.
Hollingsworth v. Perry, No. 21-1304.
Now those of the proponents still intent
The constitutionality of Proposition 8
on keeping the video from public view
was successfully challenged in Perry
have asked the Supreme Court to step
v. Schwarzenegger, 704 F. Supp. 2d
in. The first question presented, going
921 (N.D. Cal. 2010) (holding that
to standing, is whether “the breach of
Prop. 8 violated both the due process
Judge Walker’s binding promise to
and equal protection clauses of the 14th
Amendment, affirmed on other grounds, Petitioner, upon which they reasonably
sub nom Perry v. Brown, 667 F. 3d 1078 and detrimentally relied, cognizably
(9th Cir. 2012). The proponents filed a injures them,” which could give them
cert petition, which was granted, only standing to appeal the district court’s
for the Supreme Court to decide, 5-4, order. The second question is “Whether
that the proponents did not have standing the video recordings that Judge Walker
to appeal the trial court’s ruling when solemnly promised Petitioners would
official state defendants decided not not be made public may now be ordered
to appeal. See Hollingsworth v. Perry, publicly released over their objection.”
133 S. Ct. 2652 (2013). Prior to the Charles Cooper, who was the lead
trial in this case, Chief District Judge trial attorney for the Proponents (who
Vaughn Walker announced his intention intervened to defend Proposition 8
to have the trial simulcast to various when then-California Attorney General
courtrooms, as the district courtroom Jerry Brown declined to do so), is the
in San Francisco was too small to lead attorney on this certiorari petition.
accommodate the enormous number of There is some irony to this, because
people interested in attending, but the some years after the trial Cooper
proponents protested and eventually the attended the same-sex marriage of his
Supreme Court ruled against Walker’s daughter, and indicated that although
plan. Then he announced that he he did not believe that the Constitution
intended to have a video recording made requires the states to allow same-sex
of the trial for his own use and, when the couples to marry, he has no personal
proponents protested again, he stated objection to same-sex marriage.
on the record in open court that the
recording would not be made public but
instead would be preserved under seal. U.S. COURT OF APPEALS, 5TH
Although the transcript of the trial was CIRCUIT – He keeps coming back
public, the recording remains under seal. from Mexico, and they keep deporting
At various times since the trial, various him. In Garcia v. Garland, 2022 WL
April 2022 LGBT Law Notes 23CIVIL LITIGATION notes 764077, 2022 U.S. App. LEXIS 6521 he submitted the 2007 and 2018 State Higginson was appointed by President (5th Cir., March 14, 2022), the court Department County Reports on Mexico Barack Obama. rejected petitioner’s claim that because in his motion to reopen and points out the Notice to Appear he received did that the 2018 report mentions violence not specify the time and date of his targeting LGBT persons in its preamble U.S. COURT OF APPEALS, 9TH removal proceedings, he was entitled while the 2007 preamble does not.” But CIRCUIT – Tempest in a teapot, or to a do-over of the proceedings and the the court asserted that “comparison of serious 1st Amendment matter? In Riley’s BIA’s refusal to reopen the proceedings the preambles of the reports is not a American Heritage Farms v. Elsasser, was erroneous. The court notes that ‘meaningful comparison’ between the 2022 WL 804108 (9th Cir., March 17, he came to the U.S. in 1994, received country conditions at both times . . . 2022), a 9th Circuit panel decided that “voluntary administrative departure” and Garcia has not provided evidence a serious 1st Amendment issue – that in 2001, returned to the U.S. “without that the reports themselves show more could not be determined on summary having been admitted or paroled,” than the continuation of a trend of judgment – had been raised by James then sent a notice to appear in 2004 discrimination and violence against Patrick Riley, the operator of Riley’s leading to an order of removal by an LGBT individuals in Mexico. Nor does American Heritage Farms and a person Immigration Judge in 2007, which was the 2019 report contain information willing to tweet controversial right-wing affirmed in 2008, he was deported in specific to the treatment of HIV positive views. Riley claims that the Claremont 2010, but he found his way across the individuals.” The court also said that Unified School District put his business border without being formally admitted other documents Garcia submitted were providing historical reenactments yet again. According to Judge Stephen no more helpful to his case. But the real for tourists and school groups on its A. Higginson’s opinion for the court, issue from Garcia’s perspective is that banned list in retaliation for some of the Notice to Appear in the current case, his situation has change with his HIV his tweets about which the District which mentioned “a date to be set” and diagnosis, but, said the court, “a change received complaints from one parents “a time to be set” for the hearing was of personal circumstances cannot alone, and another member of the public. sufficient to comply with regulations. without further support from other Every year from 2001 to 1017, several Petitioner’s second motion to reopen changed conditions, qualify as changed classes from various elementary schools alleged that “he was recently diagnosed country conditions.” Here is an example in the District took field trips to Riley’s with HIV and was receiving antiviral of rigid bureaucratic thinking – perhaps American Heritage Farms. In August treatment.” He asserted that “country induced by a literalistic reading of the 2018, Mr. Riley, the proprietor, using conditions and his own personal statute and regulations. But this seems his individual Twitter account, posted circumstances had changed since 2007 to be the nature of our refugee laws: even comments that would be offensive to and that because of his diagnosis, if a realistic assessment of current facts some people, about Senator Elizabeth he would be perceived as a member would support a conclusion that sending Warren, Senator Kirsten Gillibrand, of the LGBT community and would a particular person back to his home Black Lives Matter, and gender accordingly face a substantial risk of country at this time would place him in diversity. After a parent complained persecution and/or torture on account danger, that is essentially irrelevant to to a teacher and suggested the district of his membership in the particular the issue whether the agency abused its should not send field trips to Mr. Riley’s social groups of: (1) ‘homosexuals in discretion in finding based on the record establishment, the matter ascended to Mexico (imputed),’ (2) ‘individuals before it that petitioner had not sustained supervisory levels and the word went in Mexico who are HIV positive’; and his burden of showing changed country out to the District Schools to think about (3) ‘HIV positive men in Mexico’”. conditions in order to justify reopening alternatives to Riley’s establishment, as The Board of Immigration Appeals his case. The court concluded that a result of which field trips to Riley’s denied this petition to reopen as well. because the petitioner had failed to were cancelled. A local newspaper The BIA found no change in country show that the BIA abused its discretion reported about the controversy that conditions during the specified time in denying his motion to reopen his case, Riley’s posts had stimulated on and no evidence sufficient to support the court would not “reach his claims Twitter and Facebook. Riley’s lawyer, asylum or withholding claims based concerning his eligibility for asylum Thomas Eastmond, sent a letter to on his described social groups. “Garcia and withholding of removal. Petitioner James Elsasser, the superintendent has not carried his burden here,” wrote is represented by Naimeh Salem of of the School District, as well as to Judge Higginson. “In support of his Houston, TX. If he is removed again, various board members, alleging that argument that he has shown changed is there any doubt he will attempt to an unconstitutional policy banning country conditions, Garcia says that return if physically able to do so? Judge field trips to Riley’s in retaliation for 24 LGBT Law Notes April 2022
CIVIL LITIGATION notes
his tweets should be rescinded. The Donald J. Trump. As such, the panel based on age, sexual orientation and
District disclaimed having a formal is not representative of the majority marital status in violation of the
policy; its position was that having been ideological balance on the 9th Circuit, California Fair Employment and
advised of Riley’s tweets, principals where 18 active judges were appointed Housing Act, and intentional infliction
and teachers decided against the field by Presidents Clinton, Obama and Biden, of emotional distress. These claims
trips. Is there a First Amendment issue while 13 active judges were appointed arose out of the common nucleus of
here? Riley thought so and filed suit. by Presidents G.W. Bush and Trump. facts alleged in the discrimination claim
The district court dismissed the School Perhaps an en banc petition may change against the company. District Judge
District as a defendant on sovereign the result in this case. As Judge Ikuta John W. Holcomb found that the facts
immunity grounds, but litigation noted, there is no 9th Circuit controlling alleged were sufficient under California
continued against the Superintendent precedent on the 1st Amendment issue law to state a claim against Heesch, and
and some board members. The district as resolved by the panel in this opinion, granted Randall’s motion to remand
court decided that these defendants which is why the individual defendants the case to state court, but denied
were entitled to qualified immunity as enjoy qualified immunity from the Randall’s request for attorneys’ fees
to monetary damages. But Riley was damages claim. for representation in opposition to the
most interested in prospective injunctive removal motion. Randall is represented
relief, which would not be barred by by Mark Shipman Stiffler, Donald R.
immunity. However, former President CALIFORNIA – In Randall v. Automatic Holben, Paul H. Duvall, and Nia K.
Trump’s least favorite district judge, Data Processing, Inc., 2022 WL Perkinsm, of Donald R. Holben and
Jesus G. Bernal, concluded that there 843460, 2022 U.S. Dist. LEXIS 51639 Associates APC, San Diego, CA. Judge
was no evidence that the defendants (C.D. Calif., March 21, 2022), Thomas Holcomb was appointed by President
had a “policy” prohibiting future field Randall, a California resident who is a Donald J. Trump.
trips to Riley’s, so there was no need gay man, sued his former employer and
for injunctive relief. The 9th Circuit his former supervisor for discrimination
panel, in an opinion by Judge Sandra S. because of age and sexual orientation, DISTRICT OF COLUMBIA – Janice
Ikuta, joined by Judges Mark J. Bennett failure to prevent discrimination and Coclough was employed by Akal
and Ryan D. Nelson, found that under harassment, and wrongful termination Security, Inc., to work as a Court
9th Circuit precedents Riley and his in violation of public policy. All of Security Officer under its contract
establishment should be treated as the Randall’s claims are stated solely under providing security for the federal
equivalent of government employees for state law, but the employer removed courthouses in the District of Columbia.
First Amendment purposes, meaning the case to federal court on diversity She is a lesbian but was not out at
that the Supreme Court’s Pickering grounds, noting that it is not a resident work, and kept her sexual orientation
balancing test should be used to of California for jurisdictional purposes. a secret. Nonetheless, she claims there
determine whether the government’s Randall did not want to be in federal court were rumors about her and that she
concerns outweighed the Plaintiff’s 1st and moved to remand the case, claiming was perceived as gay by court security
Amendment rights. The court found that because his supervisor, Wendy workers and court officials. She was
that there is a genuine issue of material Heesch, was a California resident, there discharged by Akal after the U.S.
fact whether the plaintiffs’ First was not complete diversity between the Marshall service sent them a written
Amendment rights have been violated; parties, so the case was not removable. demand to remove her from working
although the individual defendants ADP objected that Heesch was a “sham” in the court where she was assignment.
enjoy qualified immunity against defendant, and her citizenship should be She claimed that her discharge by Akal
monetary damages because the court disregarded for purposes of diversity. was in retaliation for sexual harassment
could find no controlling precedent on At a hearing on the contested remand complaints she had made, and that
point to this fact pattern, on the issue of motion, ADP asserted that the facts Akal could have transferred her to
prospective injunctive relief, “there is a alleged by Randall against Heesch were another assignment. Akal presented
genuine issue of material fact whether insufficient to state a claim against her. evidence that Coclough as the subject
the school officials are maintaining Randall, disagreeing, claimed that he of various complaints by coworkers
an unconstitutional, retaliatory policy could allege additional claims and facts alleging that she was subjecting other
barring future patronage to the vendor.” if he was granted leave to amend. The employees to a hostile environment.
Judge Ikuta was appointed by President court granted leave and Randall filed Her lawsuit asserted violations of Title
George W. Bush. Judges Bennett and an Amended Complaint, adding two VII and the D.C. Human Rights Act by
Nelson were appointed by President additional causes of action: harassment her employer, and she asserted claims
April 2022 LGBT Law Notes 25CIVIL LITIGATION notes
against her former supervisors under motions in Scutt v. UnitedHealth because of a disability and rejected the
the D.C. Human Rights Act. Chief U.S. Insurance Co., 2022 U.S. Dist. LEXIS motion to dismiss as to this claim. But
District Judge Beryl A. Howell granted 45445, 2022 WL 787992 (D. Haw., the court dismissed a “common rule”
the defendants’ motion for summary March 15, 2022), this case is one of ten claim under state law, as well as a Title
judgment and the plaintiff’s motion to cases that Jason Scutt, a transgender VI claim. State law claims of medical
seal certain exhibits she had submitted woman, has filed pro se “pertaining malpractice and defamation were also
in response to defendants’ motion. The to her dissatisfaction with transgender- dismissed. The complaint lacked the
opinion in Coclough v. Akal Security, related medical care and health insurance factual allegations necessary to ground
2022 WL 768469, 2022 U.S. Dist. coverage.” This particular complaint diversity jurisdiction over those claims.
LEXIS 43693 (D.D.C., March 13, 2022), focuses on whether Scutt’s rights were Since the federal court’s jurisdiction
focuses first on problems occasioned violated in the matter of transportation thus depended on Scutt’s ADA claim,
by the submission of heavily redacted services she needed in connection with the court focused on whether these other
documents by plaintiff in opposition her gender reassignment procedures. claims could remain in the case under
to defendants’ motion, which the She alleges that “she was unable to supplemental jurisdiction, and found that
court found should have been handled utilize transportation services because they fell outside the nucleus of operative
differently by plaintiffs’ counsel. As LogistiCare and UHC would not facts in the federal claim, and thus
a result, the redacted documents were communicate via email or text message must be dismissed. The defendants also
virtually useless to the court in fulfilling to accommodate her hearing loss and sought to have the entire case dismissed
its role of determining whether there tinnitus, and that she could not equally for Scutt’s failures to comply in every
were disputed issues of material fact benefit from these services due to her detail with the magistrate judge’s orders
that would prevent a grant of judgment hearing problems and body/gender in this case, but, wrote Judge Otake,
as a matter of law. The court’s solution dysphoria.” Judge Otake confronted “the Court declines to exalt form over
was to limit the factual assertions by defendants’ argument that “gender/ substance. The Court must liberally
the plaintiff in opposition to the motion body dysphoria” is not a disability construed pro se pleadings and ‘a pro se
to those made during the discovery within the meaning of the Americans complaint, however inartfully pleaded,
process that were thus part of the record with Disabilities Act (ADA), which must be held to less stringent standards
accessible to the court. Ultimately, specifically excludes from coverage than formal pleadings drafted by
Judge Howell concluded that plaintiff “gender identity disorders not resulting lawyers,” citing Erickson v. Pardus, 551
was misconstruing the options open to from physical impairments.” The court U.S. 89 (2007). But the court reminded
her employer when it received a written noted that “courts have yet to settle the Scutt that she “must comply with all
communication from the U.S. Marshall’s question of whether gender dysphoria statutes, rules, and orders and her failure
Office to take her off the contract which results from physical impairments, to do so may result in the imposition of
governed the security for the courts, and thereby excepting it from the foregoing sanctions, including but not limited to
furthermore, as far as a perceived sexual exclusion, and the answer is not as clear dismissal.” The court rejected Scutt’s
orientation claim went, the defendants cut as LogistiCare and UHC suggest,” request for permission to amend the
had presented well documented claims citing Doe v. Penn. Dep’t of Corr., complaint to add both an Affordable
of misconduct by the plaintiff in her 2021 WL 1583556 (W.D. Pa. Feb. 19, Care Act claim and additional factual
treatment of co-workers that provided 2021), but decided that the court did allegations to persuade the court that her
legitimate grounds for its action. The not have to rely on this ground for ADA gender dysphoria should be considered
opinion is long and detailed concerning coverage because there was no doubt a disability. Judge Otake was appointed
the factual allegations of both sides and that Scutt’s hearing impairment would by President Donald J. Trump.
may make interesting reading, but does count as a disability. The court found
not merit extended treatment here on no connection between “body/gender
questions of law. Plaintiff is represented dysphoria” and the transportation ILLINOIS – In Brownlee & Fleming v.
by Darrell Chambers, Silver Spring, issues raised by the complaint, as the Catholic Charities of the Archdiocese of
MD, and Douglas Stuart Rosenbloom, accommodation problem concerned the Chicago, 2022 WL 602652, 2022 U.S.
Takoma Park, MD. Judge Howell was hearing impairment! After determining Dist. LEXIS 35640 (N.D. Ill., March 1,
appointed by President Barack Obama. that the transportation services at issue 2022), U.S. District Judge Franklin U.
come under the public accommodation Valderrama issued a lengthy amended
provision of the ADA, the court opinion working his way through
HAWAI’I – According to U.S. District concluded that Scutt had “sufficiently” the defendants motion for summary
Judge Jill A. Otake, ruling on dismissal alleged denial of public accommodations judgment on a plethora of claims
26 LGBT Law Notes April 2022CIVIL LITIGATION notes
arising under Title VII and the Illinois their criminal history transcript and by cisgender woman, A.B. John Doe is the
Gender Violence Act and tort law. (The filing an objection to the name change stepparent but not the adoptive parent
original opinion sparked a motion for petition. The plaintiffs sued Cook of A.B.’s children, R.M. (son) and J.M.
reconsideration by the Archdiocese, County State’s Attorney Kimberly M. (daughter). John Doe kicked R.M. out
which caused the court to issue an Foxx and two Cook County state court of the house for various reasons, and
amended opinion.) The two plaintiffs, judges, seeking that the court order them R.M. ended up couch-surfing for a
Esther Brownlee and Joanie Fleming, not to enforce this provision, since all while with other adults. A case manager
were employed as outreach workers by the plaintiffs come within its scope and for the Indiana Department of Social
Catholic Charities providing emergency have been deterred from filing name Services advised law enforcement, and
services to homeless and at-risk people change petitions reflecting their gender a detective arrested John Doe and A.B.
in Chicago. They asserted claims based transition because of the provision. In for child abandonment. R.M. informed
mainly on allegations of harassment by granting defendants’ motion to dismiss, the detective that John Doe was a
a male co-worker and by a contractor of Judge Kness explained that contrary to transgender person whose former name
the employer, alleged flaws in the way the allegation in plaintiffs’ complaint, was Barbara. In this case, John Doe and
their complaints were dealt with, and the statute does not prohibit name A.B. v. Gray, 2022 WL 602919, 2022 U.S.
retaliation claims as well. The Law Notes changes for any group of people, but Dist. LEXIS 35568 (N.D. Ind., March
connection here relates to Fleming, instead authorizes the State’s Attorney 1, 2022), they claim that Gray and the
a lesbian married to another woman, to require updating of records and to case manager shared this information
but the decision does not focus in any advocate that a change not be granted, with the IDSS case worker and others,
significant way on her sexual orientation, leaving the decision in the hands of the including A.B., A.B.’s sister, and foster
so we will not go into great detail on this state court judge. Judge Kness noted the parents with whom A.B. and J.M.
lengthy opinion. As to Fleming’s claims, defendants’ 11th Amendment sovereign were placed. The suit claims that Gray
the court granted defendants’ summary immunity argument, but ultimately violated 14th Amendment privacy rights,
judgment motion on Title VII sexual granted the dismissal motion based 4th Amendment unreasonable seizure
harassment regarding the contractor’s on lack of standing of the plaintiffs – (the arrest), and intentionally inflicted
alleged conduct and a retaliation claim, none have applied for a name change emotional distress under Indiana tort
but denied the motion regarding sexual and none have been turned down – law. Plaintiffs claim that prior to the
harassment by the co-worker. Those and specifically noting, as well, that disclosures by Detective Gray and
interested in the excruciating details are the judicial defendants enjoy judicial the case worker, neither A.G., nor her
referred to the published opinion as cited immunity. Plaintiffs argued that in children or her sister (and of course
above. The plaintiffs are represented by name change cases the judges would not the foster parents) knew that John
Uche O. Asonye and Renee Christine be acting in an administrative capacity Doe was identified as female at birth
Fell, Asonye & Associates, Chicago, rather than a judicial capacity and thus lacked male genitalia – the information
IL. Judge Valderrama was appointed by would not enjoy immunity, but Judge disclosed by Gray and the case worker.
President Donald J. Trump. Kness disagreed, finding that the judges U.S. District Judge Damon R. Leichty
are acting in their judicial capacity when granted summary judgment in favor of
ruling on petitions for name changes, defendants, finding that “no reasonable
ILLINOIS – In Ortiz v. Foxx, 2022 WL as the statute leaves it up to the judges jury could find for John Doe and
991965, 2022 U.S. Dist. LEXIS 61121 to decide whether to deny a petition A.B.” While conceding that a privacy
(N.D. Ill., March 31, 2022), U.S. District due to the objection of the State’s argument could be made, in this case
Judge John F. Kness ruled that the Attorney. Plaintiffs are represented by both defendants are public officials, so
federal district court lacked jurisdiction the Transformative Justice Law Project qualified immunity shelters them from
over litigation by a group of transgender of Illinois, Chicago, IL; and Alexandra liability unless they violated a clearly
plaintiffs seeking a declaration that Joelle Block, Brian D Straw, Martin S. established constitutional right. Judge
a provision of Illinois’ name-change Kedziora, Gregory Edward Ostfeld, of Leichty found that it was not clearly
statute was unconstitutional. The Greenberg Traurig LLP, Chicago, IL. established in binding case law that a
statute provides that a State’s Attorney Judge Kness was appointed by President constitutional right of privacy would
may react to the filing of a name- Donald J. Trump. protect against disclosure of knowledge
change petition by a person who has about a person’s gender identity in a
been convicted of a felony, certain sex case such as this, and that based on the
crimes, or an identity-theft offence INDIANA – “John Doe” is a evidence in record concerning the state
by requiring the petitioner to update transgender man who is married to a of Detective Gray’s knowledge when he
April 2022 LGBT Law Notes 27CIVIL LITIGATION notes
made the arrest for child neglect, it was her supervisor didn’t follow up on her KENTUCKY – Chief U.S. District Judge
supported by probable cause. The court complaint, she contacted the Kentucky- Greg N. Stivers granted the employer’s
rejected this argument by plaintiffs: based legal department, which began motion for dismissal or summary
“John Doe and A.B. also claim that an investigation or her report, but the judgment in Thomas v. Haaland, 2022
there is a ‘clear trend in the caselaw that company terminated her for “violating WL 801284, 2022 U.S. Dist. LEXIS
[the court] can say with fair assurance a company guideline.” She claimed that 45573 (W.D. Ky, March 15, 2022).
that the recognition of the right by a white male employees who received The judge was dealing with a pro se
controlling precedent was merely a warnings for “more serious violations” complaint that went through three
question of time,” relying on such cases had not been terminated. She sued in rounds of amendment, by a heterosexual
as Lawrence v. Texas, U.S. v. Windsor, state court alleging a violation of the man claiming his termination as a
and Obergefell v. Hodges. “Though a KCRA, and the company removed Visitor Use Assistant at a national park
case directly on point is not required for to federal court citing diversity of violated his rights under Title VII and
a right to be clearly established,” wrote citizenship. The company’s dismissal the Americans with Disabilities Act. The
Judge Leichty, “this generalized trend motion alleged, among other things, that court found that the complaint failed to
toward recognizing rights for same- retaliation based on opposition to sexual allege actionable discrimination against
sex relationships is not tailored to the orientation discrimination was not the plaintiff for being heterosexual
disclosure of private information and actionable because the KCRA does not or having a disability. The defendant
does not demonstrate that a sufficient ban sexual orientation discrimination. asserted that plaintiff was discharged
consensus had been reached on the Judge Hale found that Kentucky courts because of his conduct which had
right to keep one’s sexual preference or have followed Title VII precedents in alarmed a visitor to the park, and the
gender identity private from disclosure construing the KCRA, and that federal court found that the complaint did
to family or foster parents by state diversity cases upon which the company not allege facts that would support an
authorities during an investigation.” The relies predate the Supreme Court’s inference that his dismissal was due to
plaintiffs are represented by Russell W. decision in Bostock v. Clayton County, his sexual orientation as a heterosexual
Brown, Jr., of King Brown & Murdaugh 140 S. Ct. 1731 (2020), interpreting man. Judge Stivers was appointed by
LLC, Barrister Court, Merrillville, Title VII’s ban on sex discrimination President Barack Obama.
IN. Judge Leichty was appointed by to include sexual orientation
President Donald J. Trump. discrimination claims. The stated
legislative purpose of the KCRA is “to LOUISIANA – In Henderson v. Board
provide for execution within the state of of Supervisors of Southern University,
KENTUCKY – Does Kentucky’s Civil the policies embodied in . . . Title VII,” 2022 U.S. Dist. LEXIS 52279, 2022 WL
Rights Act (KCRA), which does not citing Ky. Rev. Stat. Sec. 344.020(1) 875592 (M.D. La., March 23, 2022), a
expressly forbid discrimination because (a). “The Supreme Court’s decision in suit alleging that a high school senior
of sexual orientation but does ban sex Bostock and Kentucky courts’ reliance was subjected to student-on-student
discrimination, give rise to sexual on federal law when interpreting the harassment because of his sexual
orientation discrimination claims as a KCRA support a finding at this stage orientation and the school violated
matter of statutory interpretation? Ruling in the litigation that the KCRA protects Title IX by an inadequate response to
on a motion to dismiss a diversity case, individuals from discrimination based the situation was dismissed without
U.S. District Judge David J. Hale finds it on sexual orientation,” wrote Judge Hale. prejudice by U.S. District Judge John
appropriate to deny a motion to dismiss Thus, “opposing” such discrimination W. deGravelles, who allowed the
an employee’s claim that she suffered comes under the protection of the anti- plaintiff 28 days to file an amended
retaliation because she opposed sexual retaliation provision of the statute. The complaint if the necessary additional
orientation discrimination, in Cimbalo court also rejected other arguments by facts could be alleged sufficient to meet
v. BASF Corporation, 2022 WL 696798, the employer, denying the company’s pleading requirements as specified in
2022 U.S. Dist. LEXIS 40575 (W.D. motion to dismiss both the original the opinion. In a footnote, the judge
Ky, March 8, 2022). Kerry Cimbalo and the amended complaints on these remarked that the defendants were not
was hired to oversee human resources grounds. Cimbalo is represented by disputing that harassment based on
at BASF’s Quincy, Florida, worksite. Thomas Robert Coffey and John sexual orientation could be actionable
She brought to management’s attention Morgan McGarvey, of Morgan Pottinger under Title IX., citing Bostock and
allegations that the manager at the McGarvey-Louisville, Louisville, KY. the Biden Administration’s indication
site “was demonstrating racial, sexual Judge Hale was appointed by President that all federal sex discrimination
orientation and gender hostility.” When Barack Obama. laws should be construed consistently
28 LGBT Law Notes April 2022CIVIL LITIGATION notes
with the Supreme Court’s ruling that the Supreme Court’s Iqbal and Twombly classes via public transit, as he did not
discrimination because of sexual decisions, demand sufficient factual have a car. He fell in love with another
orientation is covered by all federal specificity in complaints to support student who also lived in the university
sex discrimination laws. In addition to all the elements of the cause of action, housing, his first real gay relationship,
the harassment claim, plaintiff asserted not just a conclusory assertion. The but it turned out his new partner was
that the student, J.T., suffered retaliation constitutional claims in the complaint HIV positive and infected him, which
for complaining about the harassment, were added to try to get at the school he claims “completely upended” his life,
that his equal protection rights were director and the assistance principal and especially his hopes to join Bowie’s
also violated by the treatment of his on individual claims, since only the football team, since the school doctor
situation by school officials, and that school itself can be sued under Title who diagnosed him told him he would
his 1st Amendment free speech rights IX. The court held that the individual be disqualified on medical grounds. He
were violated when he was punished defendants could not be sued in their confided in the V.P. for Student Affairs,
for a verbal altercation with a teacher official capacities on these claims, who had been sympathetic in finding
about a month later. The judge’s opinion only in their individual capacities, and him housing, for which he had applied
methodically addresses each claim, that the complaint failed to show that late. His relationship with the other
laying out the 5th Circuit precedents they had violated a well-established student collapsed in raucous arguments
for proof and specifying how the constitutional right based on the factual in the university housing, and he was
complaint fell short, usually in terms allegations of the complaint and thus required to go to counseling. Then after
of factual specificity. After the school they enjoyed qualified immunity from police raided the suite in which he was
gave J.T. approval to graduate early, individual liability. However, as noted, living with several other students and
another student added him to the senior the court gave the plaintiff four weeks found marijuana (which he asserts did
class group text, and the complaint to file an amended complaint. The suit not belong to him and which he had
alleges that “almost immediately” his was filed by J.T.’s mother on his behalf. never used), he lost his housing and was
classmates “sexually harassed J.T. by Representing the plaintiff are Jill L suspended from school by order of the
sending derogatory remarks in reference Craft and William Brett Conrad, Jr., of same V.P. in whom he had confided. He
to his sexual orientation” on the text, Ms. Craft’s firm in Baton Rouge, LA; pursued his case through the school’s
characterizing this as “cyberbullying.” and Kaitlin Aubrey Wall, of Erlingson appellate process unsuccessfully.
However, wrote the judge, pleading a Banks, PLLC, also of Baton Rouge, LA. Although he was eventually allowed to
harassment case requires more than Judge deGravelles was appointed by resume attending classes, he was barred
asserting conclusions. The complaint President Barack Obama. from the housing. These experiences
lacks specifics. What were the adversely affected his grades. He claims
derogatory remarks? How many were that “none of the other people involved
there? How frequent were they? After MARYLAND – For an extensive tale of in actually smoking marijuana were put
school officials were notified by J.T., woe and an unhappy ending (dismissal out of their student housing” and that
the assistant principal told one of the of the case), see Carter v. Bowie State “none of the other roommates or other
students involved, who “threatened University, 2022 WL 717043, 2022 students involved were suspended from
J.T.,” but exactly how he was threatened U.S. Dist. Lexis 42650 (D. Md., March school as a result” of the marijuana raid.
was unstated. J.T. was then removed by a 9, 2022). Tavion Carter, an African He also claimed that he was the “only
student from the senior class group text American gay man, grew up in Las student who lived in this CMRC room
as a result of which he alleges he was Vegas, raised by a single mother. He who was known to be homosexual” and
excluded from senior class activities. The says he was basically on his own once “the only student who had HIV.” He
verbal altercation with a teacher which he was 17, and moved to Maryland when claims he was expelled from the housing
led to his discipline occurred a month he was 20 after his mother was sent to and barred from returning, even to get
later, and once again the complaint is prison. He was essentially homeless his HIV meds, and was “the only student
not specific about the altercation and and moved into a shelter as he was suspended as a result of the incident.”
asserted that J.T. suffered discrimination finally coming to grips with his sexual He claims violations of Title IX and the
without specifying how his treatment orientation. He applied to Bowie State, Americans with Disabilities Act, as well
differed from other similarly situated a historically black university, and as state law claims, asserting generally
students. Those interested in full details managed to secure university-connected that the people involved with making
of the court’s analysis should consult the housing having found shelter life too these decisions knew he was gay and
opinion. Civil pleading requirements as dangerous for a gay black youth, and HIV-positive, and that the V.P. had not
applied in the 5th Circuit (and pursuant to having found difficulty in getting to his taken steps to protect his interest or
April 2022 LGBT Law Notes 29CIVIL LITIGATION notes
advise him of his legal rights. He was alleged that a co-worker “continuously is represented by Paul V. Bennett, of
granted in forma pauperis standing on subject [him] to national origin-based Columbia, MD. Judge Griggsby served
the lawsuit. Although counsel is listed and perceived sexual orientation-based on the Court of Claims for several
on this opinion dismissing his case, the discriminatory harassment,” and alleges years by appointment from President
loss seems to be attributed largely to that other employees who were not from Barack Obama, and was appointed to
failure to plead facts sufficient to state Sierra Leone or were not perceived as the district court last year by President
a claim under either statute, and part gay “were not mistreated as [he] was Joseph R. Biden, Jr.
of the opinion is devoted to dismissing by Defendant TCA, even though they
supplementary state law claims on all had Patterson as a supervisor.”
sovereign immunity grounds and also Complaints to supervisors allegedly NEW MEXICO – De Anza Angel Dimas
claims against individuals, as the civil failed to invoke appropriate measures was a high school senior attending
rights statutes in question only run against the harasser. As usual in hostile Pecos High School in 2019. She was a
against the school, not individuals. He work environment cases, the court found member of the girls’ basketball team,
won a symbolic victory in defeating the that the facts as alleged by Conteh were and she was dating another member
defendant’s claim of untimely service, not sufficiently “severe or pervasive” to of the team. On January 4, 2019, the
the court noting that while his petition to adversely affect his terms and conditions team members got on a bus to go to a
proceed in forma pauperis was pending, of employment, since they focused on tournament. Before the bus could leave,
his time for serving the defendant with just a few offensive statements, such the high school’s Athletic Coordinator
his complaint was tolled. Ultimately, as “I don’t like Africans” or “he has asked Dimas and her girlfriend to get
the court concluded that his factual no kids; he must be gay.” In terms of off the bus, then questioned them. Flores
allegations were insufficient to plead discrimination claims against DPC, asked Dimas whether she “thought it
discrimination and retaliation claims the court found that because there was was appropriate for her and to be sitting
against Bowie State. Counsel listed no direct evidence of discriminatory in the same bus seat with her same-sex
on the opinion is Wanda J. Dixon of intent, plaintiff had to satisfy the girlfriend.” He told her that “students
Largo, MD. Judge George J. Hazel was McDonnell Douglas test for alleging a involved in dating relationships could
appointed by President Barack Obama. constellation of facts that would support not sit together on the bus or cohabit the
an inference of discriminatory intent, same rooms during overnight trips.” He
one factor of which is alleging that the then allowed Dimas back on the bus,
MARYLAND – Alusine Conteh, an plaintiff satisfactorily performed their where other students asked her “why she
immigrant from Sierra Leone, was job. In this case, although he identified had been taken outside, separated, and
employed as a protective security himself in the complaint as an excellent asked to sit elsewhere.” In the ensuing
officer by two companies, Diversified employee, the court faulted him for not lawsuit, she claims to was “highly
Protection Corporation (DPC) and citing concrete evidence of satisfactory humiliated, disrespected, and distressed
Triple Canopy, Inc. (TCI), working job performance. The court also stated at being forcibly ‘outed’ before her
at one location in Silver Spring MD that “he has not alleged facts to show teammates and the other students.” She
and another in White Oak MD. His that defendants undertook any of the sent a written complaint against Flores
supervisor was the same man employed identified adverse employment actions to school administrators, but the school
by both companies, Alan Patterson, and because of his national origin or superintendent, Fred Trujillo, responded
Patterson reported to the same director at perceived sexual orientation.” As to his that it was the school’s policy to separate
both worksites. In Conteh v. Diversified retaliation claim, the court asserted that students based on dating relationships.
Protection Corporation, 2022 WL “he fails to allege any facts to show that Amidst continuing controversy, the
874937, 2022 U.S. Dist. LEXIS 53182 the deciding officials who undertook school abandoned the policy in August
(D. Md., March 24, 2022), U.S. District the adverse employment actions at issue 2019, after Dimas had graduated, but
Judge Lydia Kay Griggsby granted the knew of” the complaint he had made coaches raised the issue with her as the
employers’ motion to dismiss Conteh’s to supervisors, and the judge faulted basketball season continued. She sues
perceived sexual orientation and national plaintiff for not identifying the dates under Title IX, the 14th Amendment, the
origin discrimination claims, as well on which his complaints were made in New Mexico Constitution and Human
as hostile environment and retaliation order to establish a causal connection Rights Act, and common law invasion
claims against DPC, but allowed a between the complaints and the adverse of privacy against the School District,
discrimination claim to go forward employment actions based on temporal the High school, Flores and Trujillo,
against TCI. Judge Griggsby found proximity, as there was no other initially in state court but removed by
that in the claim against TCI, Conhet direct causation evidence. Plaintiff defendants based on the federal claims.
30 LGBT Law Notes April 2022CIVIL LITIGATION notes
U.S. District Judge Kea W. Riggs ruled federal government under Title IX was that Kelly had failed to prove that
on motions for judgment on the pleading not sufficient to exhaust administrative she and Circe had a plan to adopt and
by defendants in Dimas v. Pecos remedies under the NMHRA, and here raise a child together that continued
Independent School District Board of Dimas never filed a complaint with the “unabated” after the termination of
Education, 2022 WL 816501, 2022 U.S. NM Human Rights Commission. All their relationship, and thus that Kelly’s
Dist. LEXIS 48105 (D. N. Mex., March dismissals were with prejudice accept claim did not come within the second-
17, 2022). The court dismissed the Title the NMHRA claims, which can be parent ruling of Brooke S.B. The
IX claims against Flores and Trujillo refiled if administrative remedies are Appellate Division affirmed this ruling
because Title IX is only actionable first exhausted. Dimas is represented in K.G. v. C.H., 79 N.Y.S.3d 166 (N.Y.
against educational institutions, not by Derek V. Garcia, Albuquerque, NM; App. Div., 1st Dept., June 26, 2018),
individuals. The defendants argued and Michelle Garcia, New Mexico but opined that it could not decide the
that Title IX does not apply to sexual Legal Aid, Santa Fe, NM. Judge Riggs issue of “whether equitable estoppel
orientation discrimination claims, but was appointed by Donald J. Trump. could establish standing of the former
by now that ship has sailed. Judge Riggs partner, warranting remand to the trial
noted that even before the Supreme court.” In K.G. v. C.H., 113 N.Y.S.3d 475
Court’s Bostock decision in 2020, many NEW YORK – In a decision made on (N.Y. Co., Jan. 18, 2019), Justice Nervo
courts had begun to construe Title IX January 10, 2022, but not published set out at the request of the parties the
as extending to sexual orientation and until February 18, 2022 in the NY Law criteria he would use to determine
gender identity discrimination claims, Journal, N.Y. Supreme Court Justice whether Kelly had standing to seek
but Bostock, albeit a Title VII case, Frank Nervo ruled in K.G. v. C.H. (also custody or visitation on an equitable
would be followed as a precedent under sometimes listed as Kelly G. v. Circe estoppel theory. In Kelly G. v. Circe H.,
Title IX. However, taking literally H.), 2022 NYLJ LEXIS 119 (N.Y. Co.) 117 N.Y.S.3d 171 (App. Div., 1st Dep’t,
the statutory prohibition against (apparently not officially published as Dec. 17, 2019), the Appellate Division
discrimination under Title IX, Judge of the end of March 2022), that Kelly rejected Kelly’s objections to some
Riggs ruled against Dimas on the Title G., the former partner of Circe H., is not aspects of Justice Nervo’s equitable
IX claim “for failure to plausibly plead entitled to legal recognition as a parent estoppel criteria, and affirmed Justice
the fourth element” of a Title IX claim. of A., a child who was adopted by Circe Nervo’s award of $200,000 in interim
She wrote, “Plaintiff fails to allege, H. more than a year after the parties had counsel fees to Circe. There would
beyond conclusory statements, any terminated their relationship. This case be continuing wrangling about fees
deprivation of educational benefits or received substantial press attention at as the case progressed, Justice Nervo
access.” Thus, her allegations “fall short various stages in the litigation, which eventually embracing the view that
of stating a claim under Title IX against has been ongoing since September 1, Kelly should bear total responsibility
Defendants PISD and Pecos High 2016, when K.G. petitioned the court for the cost of this litigation to Circe.
School.” As to claims under the New for legal standing as a parent of A., As summarized in an unpublished order
Mexico Constitution, and the invasion including custody and visitation. K.G. issued by the court on December 1, 2021,
of privacy claim, the court found that did not originally assert an equitable Kelly’s failure to pay ordered interim
there was no waiver of state sovereign estoppel claim, instead claiming to fees led the court to order that she be
immunity from being sued on these be a parent pursuant to the N.Y. Court fined $2,700,458.09, “representing the
claims in federal court. Under New of Appeals’ then-recent opinion in amount of unpaid judgments under the
Mexico jurisprudence, “a governmental Brooke SB v. Elizabeth CC, 28 N.Y.3d 1 January 18, 2021, and March 31, 2021
entity of New Mexico may not be sued (2016). Circe maintained throughout the orders, with interest, and $15,000.00 in
unless the plaintiff’s cause of action litigation that Kelly was never a parent of respondent’s counsel fees” in bringing
fits within one of the exceptions to the A., and that in fact when Circe decided the application for an order of contempt,
immunity granted to governmental to go ahead with the adoption after the and ordering detention if Kelly persisted
entities and public employees” in the parties had ceased their relationship, in defying the court’s orders regarding
New Mexico Tort Claims Act, which Kelly had expressly foresworn any fees. Most recently, as noted in the first
is strictly construed, so both claims desire to be the legal parent of the child, sentence above, Justice Nervo issued
were dismissed. Her claim under the although she had contact with A. as a an extensive opinion published in the
New Mexico Human Rights Act was “friend” or at times “godmother” or NY Law Journal on February 18, 2022,
also dismissed, this time for failure to “babysitter.” In K. v. C., 51 N.Y.S. 3d setting out all the record evidence in
exhaust administrative remedies. The 838 (N.Y. Co., April 11, 2017), Judge great detail pertinent to the equitable
court held that filing a complaint with the Nervo ruled after an extensive trial estoppel theory as applied to this case,
April 2022 LGBT Law Notes 31CIVIL LITIGATION notes even though Kelly had moved to abandon NEW YORK – U.S. District Judge Mary the D.C. court stayed its case through that theory, since she had not agreed Kay Vyskocil granted the government’s April 18, 2022, the purported effective that a dismissal at this point should bar motion to dismiss Family Equality v. date of the pending rulemaking. In any her from raising the issue in the future. Becerra, 2022 WL 956256, 2022 U.S. event, Judge Vyskocil decided to grant Justice Nervo opined that finality was Dist. LEXIS 59066 (S.D.N.Y., March 30, the government’s motion to dismiss this important, and so a full ruling on the 2022), which is a challenge by several case, not on grounds of mootness but equitable estoppel theory was necessary. LGBT social service organizations instead on grounds of standing (an issue The opinion decisively rejects the to the Trump Administration’s raised by the government initially). application of equitable estoppel on the announcement that the Department The judge found that the co-plaintiffs evidentiary record in this case. Those of Health and Human Services (HHS) in lacked Article III standing to bring seeking a full accounting of Justice would not enforce provisions of a 2016 this case, concluding that they “have Nervo’s determinations on the merits Obama Administration rule concerning not suffered an involuntary material are referred to his 2017 decision and this non-discrimination in programs funded burden on established core activities.” January 10 decision as published in the by grants from HHS. The Obama The plaintiffs argued that as a result of NY Law Journal on February 18, which Administration had included “sexual the non-enforcement announcement, as of the end of March was available on orientation” and “gender identity” they incurred various expenses in Lexis but not on Westlaw. The Appellate in the rule as forbidden grounds of responding to it, but the judge found Division has conditionally granted a discrimination. The plaintiffs – Family that such expenses did not count for stay of Justice Nervo’s December 23, Equality, True Colors United, Inc., purposes of establishing individual 2021, fee awards, “on condition that and Services & Advocacy for GLBT standing under Article III, and that petitioner-appellant perfect the appeal Elders (SAGE) – filed suit claiming the organizations’ “ability to carry out of the September 2022 Terms of this that this announcement, titled “Not of responsibilities has not been impeded.” Court.” In his January 10 ruling, Justice Non-Enforcement,” was in an attempt Plaintiffs are represented by Karen Nervo stated that Circe’s counterclaim to rescind or modify the “2016 Grants Loewy, Lambda Legal, Washington, for costs and attorney fees was severed, Rule” without going through the DC; Kristen Paige Miller, Sean Lev, and “and proceedings thereunder shall requirements of the Administrative Jeffrey Benjamin Dubner, Democracy continue unabated.” Counsel listed on Procedure Act, and was thus invalid. Forward Foundation, Washington, DC; the 2017 merits decision were Nancy After the Biden Administration took Robin Thurston and Sasha Buchert, Chemtob, of Chemtob, Moss & Forman office, Judge Vyskocil received a Washington, DC. Judge Vyskocil LLP, for Kelly, and Bonnie Rabin, of letter from the parties “advising that was appointed by President Donald J. Cohen Rabin Stine Schumann LLP, for a pending final rulemaking would Trump. Circe. Counsel listed on the Appellate roll back the 2016 Grants Rule,” Division decision of 2018, in addition mooting this case. This would be as to those listed for the trial court ruling, part of President Biden’s instruction NORTH CAROLINA – In Fuenffinger v. were Roberta A. Kaplan and John C. to all federal agencies to review and Ecigcharlston, LLC, 2022 WL 951619, Quinn of Kaplan & Co., for Circe, and update their discrimination policies, 2022 U.S. Dist. LEXIS 58732 (D.S.C., Gretchen Beall Schumann, Tim James, particularly in light of the Supreme March 30, 2022), Angela Fuenffinger and Lindsay Pfeffer of Cohen Rabin Court’s ruling in the Bostock case had filed an EEOC charge against Stine Schumann LLP for Kelly. Counsel that policies banning discrimination her employer alleging discrimination for Kelly listed on the Appellate because of sex should be interpreted to on the “basis of race, color, religious Division’s Dec. 17, 2019, ruling is Eric ban discrimination because of sexual discrimination, and retaliation” Wrubel of Warshaw Burstein LLP, orientation or “transgender status.” This asserting, among other things, a hostile with Bonnie Rabin of Cohen Rabin case was stayed in February 2021 in work environment claim, according Stine Schumann LLP listed as counsel anticipation of administration action, to her amended complaint. But the for Circe. We thank Justice Nervo but “the proposed new rulemaking was complaint’s statement of facts includes for sending us the slip opinion for his challenged in a different action” in the the following: that Plaintiff’s co- January 10, 2022, decision, as it had not D.C. District Court, Facing Foster Care worker made “negative comments come to our attention because Westlaw in Alaska v. HHS. In that case, defendants about homosexuals” and “homophobic has been our primary source for stipulated that the effective date of the comments about Plaintiff” such as “I locating cases of interest in Law Notes, new rulemaking would be extended to can’t believe you are bisexual.” The as a result of which it was not reported August 2021, so this case was further magistrate judge assigned to make in our March issue. stayed. But in subsequent developments, a report and recommendation on a 32 LGBT Law Notes April 2022
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