Nevada decision offers highly detailed analysis debunking Trump election fraud claims

Worth reading, recent Nevada state court decisions offer highly detailed analyses describing the election process while debunking Trump’s repeated election fraud claims.

The Nevada Supreme Court has rejected President Trump’s appeal to overturn that state’s election results, affirming the lower court’s decision striking down allegations of widespread voter fraud. In yet another loss for the outgoing President (marking over 50 losses or withdrawals of post-election lawsuits), the unanimous 6-0 ruling held that the Trump team had failed to demonstrate any legal error in the district court’s decision, while noting that the district court had even considered evidence that did not meet evidentiary requirements under Nevada law for expert testimony or for admissibility.

Attached to the Supreme Court’s Order, the 34 page decision (Jesse Law, et al. v. Judith Whitmer, et al., Judge James T. Russell), first described in detail the histories of, and technical workings of, the mail-in voting machines used to sort and check signatures, and the machines and software used for in-person voting.  Agilis Ballot Sorting System, provided by Runbeck Election Services, with Parascript automatic signature verification technology, is the standard for mail-in voting.  Dominion Voting Systems is the standard for in-person voting machines and software.

As stated by the court:

“Runbeck is a well-respected election services company headquartered in Phoenix, Arizona. It provides a suite of hardware and software products that assist with mail ballot sorting and processing, initiative petitions, voter registration, and ballot-on-demand printing. It is also one of the largest printing vendors for ballots in the United States. In 2020 alone, it printed 76 million ballots and mailed 30 million. Runbeck’s clients are state and county election officials in the United States. Runbeck does not do work for political parties or candidates.”

The Agilis ballot-sorting machine is similar to those used by the U.S. Postal Service. It takes a high res photo of each ballot as it is run through the machine, it weighs the ballot envelope, checks its barcode, and its signature, all before sorting it for counting or flagging for a deficiency. The decision details the meticulous way the hardware and software was purchased, tested, checked, audited and certified by various officials throughout the state, county and federal government. It also details the meticulous way signatures were checked, and accepted or rejected.

“If a signature was scored below 40, it was flagged for human verification. Clark County’s permanent election personnel were initially trained by a forensic signature expert and former FBI agent, and they developed a training program for temporary staff based on this instruction. During the human verification process, an election worker reviewed the signature against a reference signature on a computer screen. If the reviewer was uncertain about a signature, the signature was passed along for additional review and compared against the voter’s entire history of signatures. If uncertainty persisted, the signature was reviewed by Joseph P. Gloria, Clark County’s Registrar of Voters, as a final check. If the signature was then rejected, the voter could undertake Nevada’s statutory cure process.”

The decision also details the in-person voting process and technology provided by Dominion Voting Systems, which is really quite impressive.  “These voting systems are subject to extensive testing and certification before each election and are audited after each election.”  While bizarre Dominion software conspiracy theories, pushed by the likes of QAnon and former Trump team attorney Sidney Powell, have been debunked repeatedly, including by former Cybersecurity and Infrastructure Security Agency (CISA) Director Christopher Krebs, this was not addressed by the court.

Examples of testing and certification cited by the court include:

  • “the electronic voting systems used by Clark County were certified by the federal government when they were first brought on the market, as well as any time a hardware or software component is upgraded. This certification is done by a voting system test laboratory.”
  • “The electronic voting machines are also tested and certified by the [Office of the Nevada Secretary of State], who contracts with the Nevada Gaming Control Board for this certification.”
  • “Clark County’s electronic voting machines were last inspected by the Gaming Control Board in December 2019 and certified by the [Office of the Nevada Secretary of State] shortly thereafter.”
  • “The voting machines are also audited against a paper trail that is generated … when voters make their selections.”
  • “After each election, Clark County, like Nevada’s other counties, conducts a random audit of its voting machines. Specifically, it compares the paper trail created by the printer against the results recorded by the voting machine to ensure they match.”
  • “Clark County conducted this audit following the November election and there were no discrepancies between the paper audit trail created by the printer and the data from the voting machine.”

After detailing various prior Trump election fraud cases that have been dismissed, the court waded through the evidence presented. Despite the bulk of the Trump team’s evidence consisting of inadmissible hearsay, the court still considered it. “The Court nonetheless considers the totality of the evidence provided by Contestants in reaching and ruling upon the merits of their claims.”

What follows, is the embarrassing argument set out by the Trump team, led by lawyers Shana D. Weir (Weir Law Group) and Jesse R. Binnall (Harvey & Binnall), more examples of how credible, capable lawyers refuse to touch these frivolous cases.

Incredibly, key “expert” witnesses offered by the Trump team failed miserably to abide by even the most basic requirements for offering expert evidence. Experts Michael Baselice (citing incidence of illegal voting in the 2020 General Election based on a phone survey of voters) and Jesse Kamzol (claiming significant illegal voting occurred in Nevada during the 2020 General Election, based on his analysis of various commercially available databases of voters) failed to provide sources for data, a verification of conclusions, and proof of quality control of the data presented. One expert report submitted by Scott Gessler also “lacked citations to facts and evidence” that Gessler had used to come to his conclusions and “did not include a single exhibit to support of any of his conclusions.”

The defendants, meanwhile (led by Bradley S. Schrager and team at Wolf Rifkin, Shapiro, Schulman & Rabkin, and Marc E. Elias and team at Perkins Coie), submitted the deposition testimony of Wayne Thorley, Nevada’s former Deputy Secretary of State for Elections, Jeff Ellington, President and Chief Operating Officer of Runbeck (manufacturer of the Agilis machine), and Joseph P. Gloria, the Registrar of Voters for Clark County.  In each case the court found their testimony to be credible.

The defendants also produced the testimony of Dr. Michael Herron, a pre-eminent, highly qualified expert in the areas of election administration, voter fraud, survey design, and statistical analysis. As stated by the court, “Dr. Herron holds advanced degrees in statistics and political science; has published academic papers in peer-reviewed journals about election administration and voter fraud; and has an extensive record of serving as an expert on related topics in litigation before numerous courts, none of which has found that his testimony lacks credibility.”

“The Court finds there is no evidence that voter fraud rates associated with mail voting are systematically higher than voter fraud rates associated with other forms of voting.”

In analyzing the Trump team’s primary claim that voter fraud occurred at multiple points in the voting process at rates in Nevada that exceed the margin of victory in the presidential race, the court found none of the Trump team’s arguments to be persuasive. In fact, it found that Trump expert Scott Gessler actually contradicted this argument by testifying that he has no personal knowledge that any voting fraud occurred in Nevada’s 2020 General Election.

Relying on Dr. Herron’s testimony, the court concluded that:

  • “After examining voter turnout in Nevada and constructing a database of voter fraud instances in the State from 2012 to 2020 … out of 5,143,652 ballots cast in general and primary elections during that timeframe (not including the 2020 General Election), the illegal vote rate totaled at most only 0.00054 percent.”
  • Contestants’ allegations “strain credulity.”
  • “none of the grounds [in the Contest] contains persuasive evidence [(1)] that there were fraudulent activities associated with the 2020 General Election in particular [or] the presidential election in Nevada; [(2)] that these fraudulent activities led to fraudulent votes, [or (3)] that these allegedly fraudulent votes affected the vote margin of 33,596 . . . that separates Joe Biden and Donald Trump in Nevada.”

Based on this testimony, the Court found that “there is no credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud.”

Moving next to allegations and testimony submitted claiming that there were problems and irregularities with the provisional balloting process, that certain voters were allowed to vote without proper Nevada identification, and that the consequences of voting provisionally were not explained to voters, the court struck down each claim:

  • “The record does not support a finding that election officials counted ballots cast by same-day registrants who only provided proof of a DMV appointment in place of a Nevada photographic identification.”
  • “The record does not support a finding that any provisional voters were wrongfully disenfranchised because of directions provided by election officials or because they were not given an opportunity to cure their ballots.”
  • “The record does not support a finding that voters were made to cast provisional ballots on election day and then not given the opportunity to cure their lack of identification.”
  • “The record does not support a finding that same day registrants with out-of-state identification were permitted to vote a regular, rather than provisional, ballot.”

As to claims of “mismatched signatures”, namely that the Agilis machine consistently malfunctioned and accepted invalid signatures, again the court found a complete lack of credible evidence:

  • “The record docs not support a finding that the Agilis machine functioned improperly and accepted signatures that should have been rejected during the signature verification process.”
  • “The record does not support a finding that election workers counted ballots with improper signatures that should have been rejected.”
  • “The record does not support a finding that ejection workers authenticated, processed, or counted ballots that presented problems and irregularities under pressure from election officials.”
  • “The record does not support a finding that illegal ballots were cast because the signature on the ballot envelope did not match the voter’s signature.”

Nor did any of the evidence support claims that  “1,000 illegal or improper votes were cast and counted” as a result of maintenance and security issues with voting machines, that 1,000 legal votes were not counted due to issues with voting machines, or that maintenance and security issues resulted in illegal votes being cast and counted or legal votes not being counted.

Echoing the baseless claims made in other Trump election fraud lawsuits, the court also rejected claims that voters were sent and cast multiple ballots and otherwise double voted, that non-Nevada residents cast ballots and those ballots were counted, and that numerous persons arrived to vote in-person on election day only to find out that a mail ballot was cast in their name already. Again, each affidavit submitted (regardless of hearsay), as in numerous other Trump election fraud lawsuits, contained conclusory, self-serving, uncorroborated accounts, that are easily explained.

While we may be tempted to cast these witnesses as liars, they may actually believe what they think they saw. They may have witnessed something they believe to be suspicious, questionable or out of the ordinary. Yet all obviously fail to ask real questions or look to other possible explanations for these supposed anomalies, most likely swayed by President Trump’s repeated mantra that there was indeed widespread, nefarious election fraud.  They “Want to Believe”.

This brings to mind one witness in the Pennsylvania lawsuit, Jesse Morgan, a contract truck driver for the U.S. Postal Service. Morgan testified he delivered what he was told were ballots from a postal facility in Bethpage, New York, to Lancaster, Pennsylvania on October 21. While unsure of the amount of supposed ballots shipped (“two pallets” worth), he said he parked the USPS trailer at the Lancaster city postal facility, but when he returned the next morning, the trailer was gone. Ignoring the fact that he’s an admitted “ghost hunter” with a criminal record, Morgan may actually have believed something fraudulent took place. The problem is, he failed to ask any real questions or investigate the matter, before spreading conspiracy theories that were quickly lapped up by certain media and tweeted out by President Trump. The story was easily debunked. It actually is common for absentee ballots to be mailed from one state to another, as the ballots are meant to be used by college students, members of the military, people who travel for work, and others who may be absent on Election Day. In addition, the number of absentee ballots returned in Lancaster County was less than the number requested, which is completely normal.

Of course, responsible, ethical legal counsel, as officers of the court, are required to ask these questions and weed out frivolous claims and unsupported evidence. Here, Trump team lawyers again failed miserably to do so.  Under the Federal Rules of Civil Procedure, Rule 11 (NRCP 11 in Nevada, or NYCRR 130:1 in New York), such frivolous conduct could be sanctionable.

Certainly arguing the “Hugo Chavez, George Soros, Hillary Clinton, Dominion algorithm vote flipping” conspiracy theory would be sanctionable. But where exactly is the line? In my experience obtaining sanctions is an increasingly uphill battle. But I really do Want to Believe that at some point courts will sanction Team Trump. There certainly has been a call for censure or disbarment.

Following the Trump election fraud playbook, the usual litany of baseless allegations were also pushed by counsel in the Nevada lawsuit: that election workers were pressured to push ballots through despite deficiencies; that votes from deceased voters were improperly cast and counted; that persons cast mail ballots in other persons’ names; that election officials counted ballots that arrived after the deadline for submitting them; that Nevada failed to properly maintain its voter lists resulting in illegal votes cast and counted; and that the postal service was directed to violate USPS policy and improperly deliver ballots.

As in numerous similar lawsuits, each was rejected after careful analysis and for all of the same deficiencies.

Lastly, the Nevada district court analyzed and rejected claims that there was Biden-Harris “candidate misconduct”. Per the decision, the record does not support either “a finding that groups or individuals linked to the Biden-Harris campaign offered or gave, directly or indirectly, anything of value to manipulate votes in this election or otherwise alter the outcome of the election” or “that multiple ballots were filled out against a bus bearing the Biden-Harris emblem outside a polling place in Clark County.”

The Legal Standard

While the court held that the standard of proving fraud required clear and convincing evidence, “even if a preponderance of the evidence standard was used, the Court concludes that Contestants’ claims fail on the merits there under or under any other standard.”

In the district court’s analysis, the Trump team failed to prove:

  • that there was a “malfunction of any voting device or electronic tabulator, counting device or computer in a manner sufficient to raise reasonable doubt as to the outcome of the election.”
  • that “illegal or improper votes were cast and counted” and/or “legal and proper votes were not counted … in an amount that is equal to or greater than the margin between the contestant and the defendant, or otherwise in an amount sufficient to raise reasonable doubt as to the outcome of the election.”
  • that “the election board or any member thereof was guilty of malfeasance.”
  • that “the defendant or any person acting, either directly or indirectly, on behalf of the defendant has given, or offered to give, to any person anything of value for the purpose of manipulating or altering the outcome of the election.”

Once again, the Trump team election fraud narrative has produced no results, and released no “Kraken“, while threatening to inflict ongoing harm to America’s faith in its electoral and democratic process. Comforting, however, is the fact that America’s judicial system has proven itself to be a reliable and credible bulwark against enemies of democracy.

The district court’s well reasoned 34 page decision should be required reading for all U.S. citizens, especially those that still have doubt.  It sheds light on a mountain of lies and deception, pushed by unethical lawyers led by Rudy Giuliani, Sidney Powell, Jenna Ellis, Joe diGenova, and Lin Wood, irresponsible media, unscrupulous politicians, and an outgoing, increasingly unstable POTUS.

The danger to democracy is real, as are the physical threats of violence and intimidation hurled against elected officials and their families. That recently SCOTUS unanimously declined to weigh in on the Pennsylvania lawsuit brought by Republican Rep. Mike Kelly is promising. But just how long must this go on until violence results?

“America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”

– Abraham Lincoln

Anthony A. LoPresti

FURTHER READING:  As Trump’s hold on power fades domestic hybrid warfare rages on, via Lima Charlie News

LOPRESTI, PLLC (c) 2020 LOPRESTI, PLLC publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please contact us at info@lopresti.one. This publication is not intended to create and does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.

Protect Your Company’s Most Valuable Asset – Its Brand

Protecting your company’s brand and trademarks should be a top priority. Failure to do so will cost you.

It goes without saying that a company’s brand identity in the marketplace is extremely important. In fact, a company’s brand, or trademark, can be its most valuable asset. What consumers associate with a brand can determine not just whether they will purchase a product or service, but also how much they are willing to pay for a product or service, how likely they are to enjoy a product or service, and whether they will recommend the product or service to others. A well-known brand’s recognition value can be worth millions. Thus, protecting a company’s brand is integral to its success. And safeguarding a company’s trademarks is integral to protecting and building its brand.

In general, a trademark is a word, phrase, symbol, or design (or a combination of those), that identifies a product or service with a particular source, e.g. your company. A trademark thus distinguishes the source of goods from others in the marketplace. Trademarks indicate both origin and quality, and they represent the goodwill from the public that a company enjoys. Since a word mark combined with a design mark often constitutes the essence of a brand, to any company trademarks are an asset to be protected.

To this end, trademarks can be registered with the United States Patent and Trademark Office (USPTO), either on its principal register—where distinctive marks are registered— or on its supplemental register—where inherently descriptive marks capable of acquiring distinctiveness are registered. A mark is considered distinctive if it is unlikely to confuse consumers as to the source of its respective product or service. Trademarks can also be registered at the U.S. state level, or internationally, on a country-by-country basis, or via an international trademark registration system, such as the Madrid System – subjects for a future article.

The rights afforded USPTO registrations between the principal and supplemental registers differ. Among other things, registration on the principal register provides the registrant with the legal presumption of the validity of the mark, prima facie evidence of ownership of the mark, notice to the public of a claim to ownership of the mark, the right to use the ® symbol in connection with the mark, and acknowledgment of its continuous and exclusive use. Registration on the supplemental register allows a registrant to use the ® symbol in connection with the mark, provides protection against the registration of a confusingly similar remark, and serves as a basis for registration in foreign counties. A key disparity in the registers is that on the principal register a trademark can attain incontestable status after five years of continuous use, whereas on the supplemental register there is no such possibility of achieving incontestable status.

[USPTO – “Protecting Your Trademark”]

In the U.S., the rights you may have to a trademark are not limited to those gained from registering with the USPTO. That is, you may have rights to a trademark even if the mark is not registered with the USPTO, which is not mandatory. These rights are called “common law rights” and are based on the use of a mark in commerce. Common law rights can even outweigh registration rights if the use supporting the common law rights predates that of the use supporting the registration. However, the benefits of registering with the USPTO, rather than just relying on common law rights, are many, including the ability to pursue statutory damages against an infringer.

Licensing is another key aspect to leveraging trademarks. Owning the rights to a trademark empowers a company to license its use to other parties for a profit (monetary or otherwise). When licensing agreements are drafted skillfully, they can benefit companies in a myriad of ways, such as: the collection of revenue from licensing fees, further proliferation of a mark in the marketplace with minimal effort, and exposure to new markets. However, when handled poorly, licensing a trademark could compromise the goodwill attached to it, open a company to dispute liability, or even dilute the distinctiveness of the mark. This is why it is important to seek the expertise of an attorney when licensing a trademark.

Filing Your Trademark

Unfortunately, the filing process can be met with inconsistency from USPTO examiners. Hence, knowing ways to maneuver around unfavorable decisions is integral to successfully navigating the federal trademark system. Obviously, there are too many reasons for refusal to register a mark to cover in one article, so let us focus on just one of the most common.

Refusal Based on Likelihood of Confusion

One of the most common reasons trademark applications are refused is because the examining attorney determines that there is a likelihood of confusion between the proposed mark and an existing trademark on the register. An examining attorney must refuse an application which conflicts with a registered mark, so if your proposed mark is confusingly similar to a registered mark, it could be refused. Importantly, the issue is not whether the marks themselves are likely to be confused with each other, but rather whether it is likely that consumers will be confused as to the source of the goods or services because of the marks used on them.

The tricky part about responding to an office action declaring a likelihood of confusion exists is that it is more difficult to prove the absence of something than it is to prove its presence. Thus, it can be challenging to demonstrate that two marks are unlikely to be confused. That said, it is best to focus a response to a refusal on the factors considered to determine a likelihood of confusion that were set out in In re E. I. du Pont de Nemours & Co. 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973). Dubbed the Du Pont factors, they are as follows:

  1. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression.
  2.  The similarity or dissimilarity and nature of the goods . . . described in an application or registration or in connection with which a prior mark is in use.
  3. The similarity or dissimilarity of established, likely-to-continue trade channels.
  4. The conditions under which and buyers to whom sales are made, i.e. “impulse” vs. careful, sophisticated purchasing.
  5. The fame of the prior mark.
  6. The number and nature of similar marks in use on similar goods.
  7. The nature and extent of any actual confusion.
  8. The length of time during and the conditions under which there has been concurrent use without evidence of actual confusion.
  9. The variety of goods on which a mark is or is not used.
  10. The market interface between the applicant and the owner of a prior mark.
  11. The extent to which applicant has a right to exclude others from use of its mark on its goods.
  12. The extent of potential confusion.
  13. Any other established fact probative of the effect of use.

While the weight given to each of the Du Pont factors varies case to case, the USPTO Trademark Manual of Examining Procedure states that factors 1 and 2 are “key” in any likelihood of confusion determination. So, often the best ways to respond to refusals based on likeliness of confusion are to either a) determine that the goods and services of the marks in question are not related or b) establish that the marks themselves are dissimilar—either in appearance or in commercial impression— or both.

Another way to help resolve a conflict with a registered mark is to enter into a Coexistence Agreement with the owner of the already registered mark. The parties of coexistence agreements agree that their marks are not confusingly similar to one another, and hence, pursuant to express terms, agree to use their respective marks concurrently. This agreement will likely contain a consent section, wherein the registered party gives its consent to the applying party to use and register the mark, in addition to other provisions regarding the use of marks belonging to the parties (including marks not yet in use). Alternatively, parties may enter into a simple Consent Agreement which provides consent for registration only. The USPTO considers such agreements as a factor in their determinations of likelihood of confusion.

Consent agreements must be drafted carefully to be of any use. In recent years the USPTO has been cracking down on “naked” consent agreements—agreements which contain little more than the registrant’s consent for the applicant to register their mark. Generally, naked consent agreements are not sufficient for overcoming a refusal based on likelihood of confusion.

However, the Trademark Trial and Appeal Board (TTAB) has clarified that significant weight should be given to consent agreements in which “competitors have clearly thought out their commercial interests”. In re American Cruise Lines, Inc., 128 USPQ2d 1157 (TTAB 2018)(internal quotations omitted). In In re American Cruise Lines the TTAB reversed a refusal to register, noting that the consent agreement at issue provided “several credible reasons [the parties] consider confusion unlikely.” Hence, consent agreements should at a minimum include such reasons.

Trademarks are an incredibly valuable asset to a business, and protecting them should be a high priority. LOPRESTI, PLLC has experience in all branding matters, and has successfully registered numerous trademarks, litigated trademark conflicts, and crafted lucrative licensing and branding agreements. The advice of an expert can make or break your efforts to protect and utilize your company’s trademarks, and hence your valuable brand. To learn more about how LOPRESTI, PLLC (lopresti.one) can make the most of your brand and trademarks, please contact us.

Article by Ashley Bogdan

LOPRESTI, PLLC (c) 2020

LOPRESTI, PLLC publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please contact us at info@lopresti.one. This publication is not intended to create and does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.

Successfully defending your business against employment discrimination claims: a LOPRESTI, PLLC case study

Employment discrimination claims, even frivolous ones, can cripple your business and cost millions in time, money, resources and bad publicity.

Last fall, attorneys Anthony A. LoPresti (of LOPRESTI, PLLC) and Cornelius J. O’Reilly successfully defended a commercial client in  federal court against claims of discrimination and retaliation under the Americans with Disabilities Act (ADA) and the New York City Human Rights Law (NYCHRL). After a six-day trial, and only two hours of deliberation, a unanimous 12 member jury held that the plaintiff had failed to prove his case, and the matter was dismissed.

The plaintiff had alleged that he had an anxiety disorder which constituted a protected disability under the ADA and NYCHRL. He contended that instead of being accommodated for his disability, he was terminated from his position as a restaurant server because of his condition, and that the defendants (a highly successful restaurant group) thus discriminated against him illegally. The case highlights a lot of key issues in discrimination law, and what businesses in general can do to fight these claims.

What qualifies as a disability?

A critical issue in this case was the question of whether the plaintiff’s anxiety qualified as a disability under the ADA and NYCHRL. Obviously, a certain amount of anxiety is normal, and even common, especially when working in a high-pressure restaurant. Yet it is oftentimes unclear when anxiety rises to the level of a disability that employers must accommodate. The ADA standard for a disability is that the relevant impairment “substantially limits one or more major life activities,” which is admittedly vague. To establish that he had a disability, the plaintiff needed to: “(1) show that he suffer[ed] from a physical or mental impairment; (2) identify an activity claimed to be impaired and establish that it constitute[d] a major life activity; and (3) show that his impairment substantially limit[ed] the major life activity.” (Sternkopf v. White Plains Hosp. No. 14-CV-4076 (CS) (S.D.N.Y. Sep. 25, 2015), citing Colwell vSuffolk CntyPolice Dep’t, 158 F.3d 635, 641 (2d Cir. 1998)).

The NYCHRL standard for a disability is even lower, however. While NYCHRL disability claims are analyzed on the same analytical framework as ADA disability claims, the NYCHRL definition of a disability is extremely broad. Under the NYCHRL, a disability is “any physical, medical, mental or psychological impairment, or a history or record of such impairment”. (Hernandez v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 253 (E.D.N.Y. 2015)). Here, the plaintiff advanced little evidence to this effect, and did not even meet that standard. The defense attorneys argued that plaintiff’s claim that he had extreme anxiety was unsubstantiated by any medical evidence and undercut by the plaintiff’s own medical witness.

However, the ADA also protects individuals who are “regarded as having such an impairment” as that described above. And under the NYCHRL, there is no requirement that the impairment be demonstrable by medical evidence. Hence, an employers’ perception of an employee as having a disability, whether or not the employee in fact has such a disability, is sufficient basis for a discrimination claim. So, it is important how witness testimony and social media records might reflect on how the employer and other employees perceive the plaintiff. In this case, it was clear that neither management nor the plaintiff’s co-workers believed he had a substantially limiting impairment.

What constitutes failure to accommodate?

To make a claim of employment discrimination premised on the failure to accommodate a disability in New York, a plaintiff must also make a request for a reasonable accommodation. A reasonable accommodation was defined by the Court in Vangas v. Montefiore Med. Ctr., No. 15-1514-CV, 2016 WL 2909354 (2d Cir. May 19, 2016), as an accommodation “which permits an employee with a disability to perform in a reasonable manner the activities involved in the job and does not impose an undue hardship on the employer’s business.” However, according to the New York Code of Rules and Regulations §466.11, an employee has an obligation to “cooperate with the employer in the consideration and implementation of the requested reasonable accommodation.”

Moreover, an employee must be able to show that a reasonable accommodation was available: “[a] plaintiff alleging that he was denied a reasonable accommodation bears the burdens of both production and persuasion as to the existence of some accommodation that would allow him to meet the essential eligibility requirements of the service, program, or activity at issue.” McElwee v. Cnty. of Orange, 700 F.3d 635, 642 (2d Cir. 2012). That is, if there is no reasonable accommodation that would allow an employee to perform their job without imposing undue hardship on the employer, then that employee cannot prevail on a claim of failure to accommodate. And, it has been recognized that “having someone else do part of a job may sometimes mean eliminating the essential functions of the job” Hernandez v. International Shoppes, LLC, 100 F. Supp. 3d 232 (E.D.N.Y. 2015), citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 140 (2d Cir.1995)).

 “After a six-day trial, and only two hours of deliberation, a unanimous 12 member jury held that the plaintiff had failed to prove his case, and the matter was dismissed.”

Regardless of the doubtful nature of the plaintiff’s anxiety in this case, he did not make a formal request for a reasonable accommodation. Without a request for accommodation and absent evidence that the defendants believed he had a disability, the plaintiff could not demonstrate that defendants failed to accommodate his alleged disability. The defendants were unaware that he even had a disability—nevertheless, they allowed him the breaks he requested when experiencing apparent symptoms of anxiety. But during one incident when the plaintiff abandoned his job post altogether, it was necessary for the defendants to assign other employees to do his work. Even if plaintiff had made a request for accommodation, it would not have been reasonable to expect defendants to eliminate the essential functions of his job by assigning his duties to other employees.

To avoid disputes over whether an employer failed to accommodate a disability, businesses should regularly inform their employees of their rights to secure accommodation for any disabilities they might have. Businesses would also do well to implement clear and fair procedures whereby employees can request accommodations, as well as policies for engaging in a cooperative interactive process to determine reasonable accommodations for those who need them. Having this process set out in an employee handbook is an essential step.

Causal Connection

Notably, under the ADA, the plaintiff needed to show that he was perceived as having a disability, and that this was at least a part of why he was terminated. (“A ‘causal showing for a prima facie case’ of disability discrimination is ‘requisite.’” Balgley v. N.Y. City Health & Hosps. Corp., No. 14-CV-9041 (KBF), 2017 WL 95114 (S.D.N.Y. Jan. 10, 2017), citing Pearson v. Unification Theological Seminary, 785 F. Supp. 2d 141, 163 (S.D.N.Y. 2011)). A causal connection in retaliation claims may be shown either “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Jones v. Target Corp. 15-CV-4672 (MKB), at *18 (E.D.N.Y. Jan. 4, 2016). Under the NYCHRL, as well, a plaintiff may prevail by proving “that unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment decision (Hernandez v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 253 (E.D.N.Y. 2015)).

In this case, the plaintiff offered only circumstantial evidence that his anxiety influenced the decision to terminate him. But the defense attorneys showed the jury that the plaintiff was in fact fired for a number of reasons, none of which came anywhere close to illegal discrimination. The defense made its case that the plaintiff had a problem with following the rules that any employee in a restaurant is expected to follow, and that the plaintiff used anxiety as an ad hoc excuse for his misconduct. The plaintiff’s misconduct was documented, and witness testimony from management established that the reasons for firing him had nothing to do with his alleged anxiety.

What Can Businesses Do?

Businesses can protect themselves from claims like this by documenting terminations and other adverse employment actions, making timely note of who is making decisions and why. All communications with the employee should take place in the presence of a witness or be recorded in some way, to ensure that there is evidence of the legitimate cause of an adverse employment action. Keeping record of employees’ violations of company policy is also key to building a case of why an employee is subjected to adverse actions.

The defense attorneys won the case by first establishing that the employees of the restaurant did not believe the plaintiff had a disorder that amounted to a disability and that, in any case, the plaintiff never made an adequate request for accommodation of such a disability. The defense also verified the legitimate reasons the plaintiff was terminated: namely, that he used his cellphone during work, left his work-station and abandoned his duties during his shift, was late, and missed shifts without notifying management. The plaintiff’s relatively poor sales performance and habit of showing up to work hungover were also put forward as reasons he was terminated. The defense’s case was so convincing that the plaintiff was subsequently denied a motion for a new trial, and he was taxed costs.

Hence, the evidence brought it home to the jury that the plaintiff in this case made false claims of disability discrimination. And it is the smart handling of evidence in any legal transaction that propels a party to victory. The best lawyers know how to put evidence to work, and the best way to get legal help is through their services.

To learn more about how LOPRESTI, PLLC (lopresti.one) can address the legal concerns of your business, prepare for and prevent workplace lawsuits, and increase the chances of successfully defending discrimination cases, please contact us.

Article by Ashley Bogdan

LOPRESTI, PLLC (c) 2020

LOPRESTI, PLLC publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please contact us at info@lopresti.one. This publication is not intended to create and does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.