Transgender | Co-op Duty | Defamation

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Jailed Transgender Treated Differently Can Sue

Jailed Transgender Treated Differently Can Sue

In Adkins v. City of New York a federal District Court noted that “like hundreds of other Occupy Wall Street protesters, plaintiff Justin Adkins was arrested on the Brooklyn Bridge on October 1, 2011. Unlike the other protesters, Adkins, following his arrest, was handcuffed to a wall for seven hours.” The reason for this different treatment, he alleged, was because he is transgender.

Adkins brought his civil rights action against the City of New York, former mayor Michael Bloomberg, and various other officials, claiming that he was detained during an Occupy Wall Street march on the Brooklyn Bridge roadway, and was taken to the 90th Precinct and initially held in a cell with other men. Neither he nor the other men complained, and no one raised any safety concerns. Nonetheless, he was removed from the cell and told to sit in a chair next to a bathroom. He was then handcuffed to a metal handrail and kept in this position for the next seven hours, resulting in soreness in his arm and shoulder over the next week. While he was handcuffed to the wall, other arrestees were provided with sandwiches, but Adkins was denied food.

On the City’s motion to dismiss the complaint, the Court dismissed all of Adkins’ causes of action, except for his Section 1983 claims against the City of New York for violation of his rights under the Equal Protection Clause of the Fourteenth Amendment.

“To prevail on an Equal Protection claim, ‘a plaintiff must demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination, and show that the disparity in treatment cannot survive the appropriate level of scrutiny.’ With respect to the first half of this formulation, plaintiff has adequately alleged that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination. Plaintiff alleges that this disparate treatment was purposeful because it was pursuant to the NYPD’s custom of subjecting transgender detainees to special conditions, viz., handcuffing them to railings. He also alleges discriminatory intent on the basis of individual police officers’ responses to learning of his transgender status, which included gawking, giggling, and inquiring about his genitalia. These allegations render plaintiff’s claims of intentional discrimination plausible.”

As for whether transgender people are a protected class, the Court took its guidance from a Second Circuit’s 2012 ruling that gay people were a quasi-suspect class on the basis of four factors: gay people have suffered a history of persecution; sexual orientation has no relation to ability to contribute to society; gay people are a discernible group; and gay people remain politically weakened.

A “suspect” classification is any classification of groups meeting a series of criteria suggesting they are likely the subject of discrimination. These classes (such as race, religion, and national origin) receive closer scrutiny by courts when an Equal Protection claim alleging unconstitutional discrimination is asserted against a law, regulation, or other government action. “Quasi-suspect” classes (such as gender) receive “intermediate scrutiny,” while a “rational basis scrutiny” currently covers all other discriminatory criteria (usually protected by discrimination statutes) — e.g., age, disability, wealth, political preference, political affiliation, or felons.

The Court reasoned that “while transgender people and gay people are not identical, they are similarly situated with respect to each of Windsor’s four factors.” “First, transgender people have suffered a history of persecution and discrimination. As the Second Circuit put it with respect to gay people, this is ‘not much in debate.’ Moreover, this history of persecution and discrimination is not yet history. Plaintiff cites data indicating that transgender people report high rates of discrimination in education, employment, housing, and access to healthcare.”

“Second, transgender status bears no relation to ability to contribute to society. Some transgender people experience debilitating dysphoria while living as the gender they were assigned at birth, but this is the product of a long history of persecution forcing transgender people to live as those who they are not. The Court is not aware of any data or argument suggesting that a transgender person, simply by virtue of transgender status, is any less productive than any other member of society.”

“Third, transgender status is a sufficiently discernible characteristic to define a discrete minority class. The test is whether there are ‘obvious, immutable, or distinguishing characteristics that define … a discrete group.’”

“Fourth, transgender people are a politically powerless minority. ‘The question is whether they have the strength to politically protect themselves from wrongful discrimination.’”

Thus, the Court concluded that transgender people are entitle to intermediate scrutiny as a quasi-suspect class for Equal Protection claims, and sustained Adkins’ Section 1983 claims against the City of New York.

A Co-op Board’s Fiduciary Duty

A Co-op Board’s Fiduciary Duty

In Berkowitz v. 29 Woodmere Blvd. Owners’, Inc., the Board of Directors of the now-deceased plaintiff’s Woodmere co-op rejected two different prospective buyers for her apartment. At the time of her application, she was 97 years old. She alleged that the first purchaser was unlawfully rejected because he was a single male and that the second purchaser, a female, was rejected to mask the discriminatory motive for the first rejection. The defendants, which included the board of directors, the co-op, and its managing agent, asserted that the first purchaser was rejected because the purchase price was too low and the second was rejected because of her inadequate finances. The Board of Directors approved a third purchaser who paid 20 percent less than the first purchaser’s offer. The defendants moved for summary judgment. The Court dismissed all claims except the breach of fiduciary duty claim against the Board members who voted to reject the first purchaser and a breach of contract claim against the co-op related to the first transaction. The Court held that plaintiff showed that the Board of Directors had a discriminatory motive.

The Court reasoned that in their role as members of a board, “the directors owe a fiduciary duty to the corporation’s shareholders ‘to act solely in the best interest of all shareholders.’ Individual members of a co-op’s board of directors may be held personally liable for breach of fiduciary duty if their decision making is tainted by discriminatory considerations. As our courts have recognized, discrimination rarely announces itself, so that generally a plaintiff alleging discrimination must ask the fact-finder to infer the defendant’s intent from circumstantial evidence.”

The plaintiff alleged that the Board was motivated by an unlawful desire to prevent an unmarried male from moving into the co-op building, and although a majority of the Board attempted to justify its refusal to approve the application on the grounds that the selling price was too low, they ultimately approved a purchaser for a selling price that was 20 percent lower. The plaintiff had submitted evidence reflecting that the Board never met to discuss and consider the first application and the sale amount. After he was rejected, the first prospective purchaser expressed a willingness to increase his offer, but received no response from the Board. On the other hand, the defendants failed to explain their subsequent approval of the lower offer. They also failed to identify documents, statistics or any facts upon which they relied when they allegedly concluded that the first offer was insufficient.

Thus, the Court concluded that the individual defendant Board members were not entitled to dismissal of the breach of fiduciary duty claim, pertaining to the first offer, in light of all of the material facts in dispute. However, because one of the defendant Board members actually voted to approve the contract, and he could not be held liable for its rejection, the complaint was dismissed as against him.

HIV Portrayal Plaintiff Wins Again

HIV Portrayal Plaintiff Wins Again

In our April 22, 2014 newsletter, we discussed a New York State Court decision in which a woman, whose picture was unknowingly used in connection with a State public service announcement, was given the green light to maintain a “right to privacy” lawsuit against the stock photo company, Getty Images, who provided her picture to the State Agency. The public service announcement in questions was a full-color image of the plaintiff, in a local paper, which displayed her picture with the caption: “I am positive (+) and I have rights” and “People who are HIV positive are protected by the New York State Human Rights Law. Do you know your rights?” The ultimate outcome of that lawsuit is still unknown, but the Court there in determined that early dismissal of the litigation was unwarranted.

Recently, the same plaintiff has found even more success in a separate litigation against the State of New York for defamation per se. Defamation per se is the same cause of action as defamation — i.e., a false statement, published without privilege or authorization, to a third party, constituting fault as judge by, at a minimum, a negligence standard — except that the plaintiff need not demonstrate actual damages, as the damages are presumed.

There are three classes are declarations that are considered defamation per se: (1) that the plaintiff committed a crime; (2) statements that tend to injure the plaintiff’s trade, business or profession; or (3) statements that plaintiff has contracted a loathsome disease.

Here, the plaintiff testified at a deposition that the photograph had been taken by Jena Cumbo in May 2011, in connection with an editorial feature focused on New Yorkers interested in music for publication in Soma Magazine, an on-line magazine. She was not paid for the photo, which was intended only for use in Soma Magazine. Ms. Cumbo did not obtain plaintiff’s permission to use the image for anything else, nor did the plaintiff recall executing any formal written permission for even this limited use.

After discovering her image in the NYS Division of Human Rights campaign poster — through a friend — plaintiff learned from Ms. Cumbo that she sold the image to Getty Images. She later learned that employees at the NYSDHR came up with the idea of the campaign, after seeing a similar ad with a healthy looking man (whom they themselves presumed had HIV/AIDS) and decided to buy a stock image to create the ads, rather than hire a model.

The Court held that the State’s negligence was self-evident. No one on the NYSDHR team in charge of creating these ads appeared to have thought of the implications of using the image in the context in which it would be used, or to seek legal counsel and advice when presented with the Getty’s license agreement, which they appeared to not have understood either.

The Court also held that HIV/AIDS is in fact a “loathsome disease” as it tends to subject the individual to public contempt, ridicule aversion or disgrace, and is thus defamation per se. As a result, plaintiff was awarded summary judgment against the State of New York, and a trial on damages only was ordered, to be held soon.

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