U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog


Union Worker's Profane Post on Facebook Is Protected

An employee's Facebook comments -- including the f-word directed at a supervisor's mother -- days before a union vote were protected by labor laws, a federal appeals court ruled.

The U.S. Second Circuit Court of Appeals said that the Facebook post was "vulgar and inappropriate," but it was not beyond the protections of the National Labor Relations Act. The appeals court said in National Labor Relations Board v. Pier Sixty that the employee should not have been fired under the "totality of the circumstances."

"However, we note that this case seems to us to sit at the out-bounds of protected, union-related comments," the appeals court said.

New York City's 'Black Car' Drivers Are Independent Contractors

In New York City, the color of your car matters if you drive a taxi.

Yellow cars can pick up passengers anywhere and anytime they hail you. Green cars can pick up only in certain burroughs, but still get the same money. Hey, it's a city that never sleeps.

But black cars are different because you work by appointment and you get to pick your hours. So a judge in Saleem v. Corporate Transportation Group says you get no overtime.

It was truly a mad March, and we're not just talking about NCAA basketball or Russian spies. We're talking about the Second Circuit, as well. Over the past 31 days, the Second has ruled on everything from puppy mills to workplace discrimination.

We know you don't have time to read through every case, but we do -- well, almost every case. Here are the ones our caselaw experts marked as the top five, selected for their interesting or unusual scenarios or significant impacts on the law.

The Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. That includes discrimination against employees who fail to conform to gender stereotypes. But the Civil Rights Act offers no explicit protections against discrimination on the basis of sexual orientation and many courts have refused to allow suits alleging discrimination because of anti-gay bias, even if that bias was born out of gender stereotypical views.

But the Second Circuit opened the door to just such a challenge on Monday, ruling that a gay employee who suffered homophobic harassment could pursue a Title VII lawsuit against his employer.

Court Overturns Judgment Against Rite Aid Over Pharmacist's Fear of Needles

A federal appeals court reversed a $1.8 million judgment against Rite Aid, concluding the company lawfully fired a pharmacist who was too afraid of needles to give immunization injections to customers.

The U.S. Second Circuit Court of Appeals said Christopher Stevens was fired because he couldn't do the job. A jury had concluded the company discriminated against the pharmacist because of his phobia, but the appeals court set aside the verdict in Stevens v. Rite Aid Corporation.

"It is understandable that the jury had sympathy for Stevens, afflicted as he was with an unusual phobia," Judge Jon O. Newman wrote for the unanimous court. "Nevertheless, his inability to perform an essential function of his job as a pharmacist is the only reasonable conclusion that could be drawn from the evidence."

Tortured Immigrant's Asylum Claim Revived

A federal appeals court has given a Salvadoran refugee another chance at asylum in the United States, but it will depend on a technical question about when he last arrived in the country.

In his petition for asylum, Jose Linares-Urrutia said that he first escaped El Salvador during a civil war that lasted a decade. He testified that he fled because he was tortured as a member of a revolutionary student group. The Salvadoran military shot him in the leg, beat him repeatedly, applied electricity to his genitals, and threatened to kill him, he said.

Linares-Urrutia had entered the U.S. on and off over a 30-year period, twice being deported and having been convicted of several crimes. He last crossed the border from the U.S. to Canada on April 25, 2012, apparently to seek asylum in that country but Canadian authorities returned him to the U.S.

Court Upholds Anti-Puppy Mill Laws

New York City has more cats and dogs than most American cities have people, and that's the problem.

The city has to deal with about one million dogs and cats -- not to mention half a million feral cats -- but it recently got some help from the U.S. Second Circuit Court of Appeals. The appeals court upheld the city's ordinance regulating "puppy mills," the pejorative term for some commercial dog distributors.

The law requires that pet shops may purchase dogs and cats only from "Class A" breeders, which are designated by federal law as breeders with valid licenses to breed on their own premises. "Class B" breeders, who generally buy and sell animals, are not permitted under the city law.

"Requiring pet shops to purchase directly from Class A breeders protects consumers by making it impossible to obscure the source of an animal by using a middleman, enhances animal welfare by reducing the incidence of disease and behavioral problems associated with irresponsible breeding, and alleviates the burden of providing care in public shelters for animals abandoned because of such problems," Judge Edward Korman wrote for the court in New York Pet Assocation v. City of New York.

Fax to Doctors May Violate Law Against Junk Faxes

There's no such thing as a free lunch and apparently no free dinners either -- at least not unsolicited fax invitations for dinner and a business show.

The U.S. Second Circuit Court of Appeals said that an unsolicited fax for a free dinner may have violated the Junk Fax Protection Act of 2005. Although a trial judge ruled the invitation was not a prohibited advertisement, the appeals court said it was close enough because the dinner had a business purpose.

Boehringer Ingelheim Pharmaceuticals, Inc. had faxed doctors an invitation to a free dinner and a presentation about a physical disorder. The company was waiting for FDA approval of its drug to treat the disorder at the time.

"The fax invitation was sent to a doctor, whom Boehringer would presumably hope to persuade to prescribe its drugs to patients," Judge Ralph K. Winter wrote for the court. "Therefore, facts were alleged that Boehringer's fax advertised a free seminar relating to its business."

Last summer, a three-judge Second Circuit panel ruled that the U.S. government could not force Microsoft to turn over email data stored on overseas servers. They rejected the government's warrant, issued pursuant to the Stored Communications Act, finding that the act had no extraterritorial reach. It was a landmark ruling, one praised by business and privacy advocates and condemned by those who viewed it as hamstringing criminal investigations.

That opinion will stand, for now. On Tuesday, the Second Circuit deadlocked 4-4 on whether to rehear the case en banc, effectively denying any rehearing -- and resulting in four separate dissents.

Court Confronts Sexual Orientation at Work

The courts are in a delicate situation when it comes to discrimination based on sexual orientation in the workplace.

"It's not about sex per se -- it doesn't matter who you slept with last night," attorney Susan Chana Lask argued on Jan. 20 in a case pending before the Second Circuit Court of Appeal.