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Case: Zarda v. Altitude Express, Inc.

2:10-cv-04334 | U.S. District Court for the Eastern District of New York

Filed Date: Sept. 23, 2010

Case Ongoing

Clearinghouse coding complete

Case Summary

This was one of the LGBT discrimination cases consolidated before the Supreme Court in 2020 when it held that "[a]n employer who fires an individual merely for being gay or transgender violates Title VII [of the Civil Rights Act of 1964]."District CourtThis case addresses the scope of the ban on sex discrimination in Title VII of the Civil Rights Act of 1964, and asks if employers are barred from discriminating against employees on the basis of their sexual orientation under the statute. A gay …

This was one of the LGBT discrimination cases consolidated before the Supreme Court in 2020 when it held that "[a]n employer who fires an individual merely for being gay or transgender violates Title VII [of the Civil Rights Act of 1964]."

District Court

This case addresses the scope of the ban on sex discrimination in Title VII of the Civil Rights Act of 1964, and asks if employers are barred from discriminating against employees on the basis of their sexual orientation under the statute. A gay man filed this lawsuit on Sept. 23, 2010 against Altitude Express and its CEO, arguing that he was terminated from his employment there on the basis of his sexual orientation. He argued that Altitude had thereby discriminated against him on the basis of sexual orientation and so violated Title VII and New York gender and sexual orientation discrimination state law. Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, national origin, or sex. The plaintiff sought damages for the employer's conduct. The suit was filed in the U.S. District Court for the Eastern District of New York and assigned to Judge Joseph F. Bianco.

Altitude Express is a corporation that facilitates opportunities for individuals to skydive. The plaintiff, Don Zarda, was seasonally employed at Altitude Express as a licensed skydiving instructor over several summers until July 2010. Zarda was openly gay. In his complaint, Zarda stated that he was required to be at work seven days per week for approximately twelve hours per day, though he was only paid per jump. As a result, there were days when he did not earn any income. The complaint described the process of skydiving, which included the client being strapped to the instructor and sitting so strapped in the instructor’s lap in the airplane just prior to the jump. Zarda asserted that it is a tense situation for a client, and so instructors tried to “break the ice” by making jokes about the situation, including gay jokes. Though gay jokes were considered acceptable, one female client complained about such a joke that Zarda made on June 18, 2010, and he was subsequently suspended from work. Zarda asserted that he “merely stated he was gay” to the client. The complaint asserted that Altitude Express's CEO, who was “hostile to any expression of sexual orientation that did not conform to sex stereotypes,” stated he fired Zarda because he had discussed his “personal escapades” with the female client and had touched her inappropriately. Zarda argued that neither of those allegations were true, and that other employees often discussed their personal intimate lives at work without consequence. Further, he argued that there was no proof the client accused him of inappropriate touching or that such touching ever occurred. Ultimately, Zarda argued that any accusations of touching were a pretext to terminate him because of his sexual orientation.

The case immediately entered into discovery disputes. The employer moved for summary judgment on Feb. 11, 2013, while Zarda moved for partial summary judgment as a matter of law a few weeks later. Zarda argued that the Second Circuit in Sassaman v. Gamache allowed litigants on a case-by-case basis to claim discrimination under Title VII on the basis of sex stereotypes. Based on this precedent, Zarda asked the court to grant him summary judgment as to the employer's liability under Title VII. The court granted in part and denied in part the employer's motion for Summary Judgment on Mar. 28, 2014. The court denied the motion with respect to the sexual orientation discrimination and minimum wage claims under New York state law, and it granted the motion with respect to the gender stereotype discrimination, hostile work environment, and overtime claims. The court also denied Zarda's motion for partial Summary Judgment. Zarda then filed his second amended complaint the same day, which eliminated the claims of violation of the Federal Labor Standards Act and New York overtime state law. The employer then moved to dismiss the case for lack of jurisdiction on Apr. 15, 2014, which the court denied on May 8.

Zarda filed a letter on June 19 documenting a statement from opposing counsel that Zarda believed to be homophobic. According to the letter, opposing counsel made references to Zarda’s “high-pitched voice”; Zarda believed this to be a direct use of known discriminatory stereotype specifically targeted at gay people.

In an unexpected turn of events, on Oct. 7, 2014, Zarda’s lawyer filed notice that Don Zarda passed away due to a base-jumping accident in Switzerland. The plaintiff moved to substitute Zarda’s estate for Zarda on Nov. 19, which the court granted on Dec. 3.

The plaintiff moved for reconsideration of partial summary judgment on Aug. 7, 2015 in light of new case law. The motion argued that a 1984 case, Chevron v. Natural Resources Defense Council, held that deference is owed to "agency interpretation in the absence of evidence of Congressional intent." The Equal Employment Opportunity Commission (EEOC) is charged with enforcing Title VII, and the plaintiff argued that the EEOC's interpretation of what constitutes sex discrimination under Title VII had developed over the years to be more expansive and include sexual orientation. Thus the plaintiff argued that as a matter of law, partial summary judgment should be granted because this court should defer to the EEOC's interpretation of sex discrimination. Moreover, the plaintiff argued that deference to the EEOC pursuant to Chevron should take precedence over a Second Circuit decision in Simonton v. Runyon that did not find that discrimination based on sexual orientation constituted discrimination based on sex under Title VII.

The trial was held in October 2015; the jury returned its verdict on Oct. 28, ruling for the employer. The plaintiff appealed on Nov. 20, 2015 to the Second Circuit.

Court of Appeals

With the case in the Second Circuit, the following parties filed amicus briefs: New York Civil Liberties Union, American Civil Liberties Union, 9 to 5, A Better Balance, Coalition of Labor Union Women, Equal Rights Advocates, Gender Justice, Legal Voice, National Women's Law Center, Southwest Women's Law Center, Women Employed, Women's Law Center of Maryland, Women's Law Project, and Lambda Legal Defense and Education Fund.

A Second Circuit panel of three judges confirmed the lower court judgment in a per curiam opinion on Apr. 18, 2017. 855 F.3d 76. The judges explained that as a panel of the Second Circuit, they were bound by the prior Second Circuit precedent, under which sexual orientation discrimination was not encompassed by Title VII's ban on sex discrimination. 855 F.3d 76. Only the entire court -- sitting en banc (all together) -- could change the precedent. 855 F.3d 76. On May 2, the plaintiff accordingly moved for a rehearing en banc, which was granted on May 25.

On June 23, the EEOC filed an amicus brief in support of the plaintiff, arguing that sexual orientation discrimination "necessarily involve[s] impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping," and such sexual orientation discrimination falls under Title VII's discrimination ban. Dozens of other parties then filed amicus briefs in support of the plaintiff, including individuals, senators, organizations, and states.

In an unusually public inter-governmental dispute, on July 26, 2017 the Department of Justice filed an amicus brief against its sister federal agency and in support of the employer, arguing that the EEOC is not entitled to any "deference beyond its power to persuade." The DOJ argued that Title VII does not reach sexual orientation, and that it is the role of Congress rather than the court to expand its application. A Title VII claim as to sex discrimination is only triggered when an employer treats similarly situated individuals of different sexes unequally. Several other organizations also filed briefs in support of the employer.

After both sides submitted a series of briefs, the en banc hearing was held on Sept. 26, 2017.

On February 26, 2018, the Second Circuit released its decision in this case, overruling the Simonton and Dawson circuit precedents, and holding that sexual orientation discrimination is motivated, at least in part, by sex, and thus a subset of sex discrimination for purposes of Title VII. 883 F.3d 100. The Court concluded that sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination, the Court held, is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted, which is forbidden by Title VII as impermissible discrimination based on sex. Finally the Court determined that sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer's opposition to association between members of particular sexes clearly discriminates against an employee on the basis of sex. Each of these three perspectives was sufficient to support the Court's conclusion and together they amply demonstrated that sexual orientation discrimination is a form of sex discrimination.

The Court vacated the District Court's judgment on the Title VII claim and remanded the case for further proceedings consistent with their opinion.

U.S. Supreme Court

On May 29, 2018 Altitude Express filed a petition for writ of certiorari to the Supreme Court of the United States in response to the Second Circuit’s en banc opinion. Specifically, they requested certiorari regarding the question of “whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of…sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2.”

Zarda filed a brief in response to the petition on August 16, 2018, stating that this case was a bad vehicle for answering the questions presented, largely because one of the petitioners was not Zarda’s employer for the purposes of Title VII liability, and because Altitude Express was dissolved, so it was unclear whether they remained liable or if a successor company not seeking review was actually liable.

Petition for writ of certiorari granted on April 22, 2019, and the case was consolidated with Bostock v. Clayton County and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. for briefing and oral argument. More than three dozen amicus briefs were filed in support of Bostock and Zarda, including one brief joined by 206 companies--including businesses such as Apple, Google, Proctor and Gamble, Walt Disney, and Coca-Cola. The companies argued that a ruling that Title VII bans discrimination based on sexual orientation would not be “unreasonably costly or burdensome” for employers, but instead that this would create benefits for business, providing “consistency and predictability” nationwide and making it easier to “recruit and retain top talent.”

Oral argument occurred on October 8, 2019, with the ACLU and the Stanford Law School Supreme Court Clinic arguing for the plaintiffs. The Supreme Court rendered its decision on June 15, 2020. Writing for a 6-3 majority, Justice Neil Gorsuch wrote that Title VII prohibits employers from engaging in discrimination "because of" sex. Justice Gorsuch stated that the statutory language "because of" implies a but-for causation analysis, meaning "so long as the plaintiff's sex was one but-for cause of that decision [to fire], that is enough to trigger the law." The opinion stated that "if an employer would not have discharged an employee but for that individual's sex, the statute's causation standard is met and liability may attach." LGBT discrimination against employees met this test, because "an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have question in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." 590 U.S. ___.

The decision of the Second Circuit was affirmed and the case remains ongoing.

Summary Authors

Virginia Weeks (10/3/2017)

Michael Beech (3/23/2019)

Caitlin Kierum (6/15/2020)

Related Cases

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., Eastern District of Michigan (2014)

Bostock v. Clayton County, Northern District of Georgia (2016)

People

For PACER's information on parties and their attrorneys, see: https://www.courtlistener.com/docket/6437755/parties/zarda-v-altitude-express-inc/


Judge(s)

Alito, Samuel A. Jr. (District of Columbia)

Bianco, Joseph Frank (New York)

Cabranes, José Alberto (Connecticut)

Gorsuch, Neil M. (Colorado)

Jacobs, Dennis G. (New York)

Kavanaugh, Brett M. (District of Columbia)

Livingston, Debra Ann (New York)

Lohier, Raymond Joseph Jr. (New York)

Lynch, Gerard E. (New York)

Raggi, Reena (New York)

Judge(s)

Alito, Samuel A. Jr. (District of Columbia)

Bianco, Joseph Frank (New York)

Cabranes, José Alberto (Connecticut)

Gorsuch, Neil M. (Colorado)

Jacobs, Dennis G. (New York)

Kavanaugh, Brett M. (District of Columbia)

Livingston, Debra Ann (New York)

Lohier, Raymond Joseph Jr. (New York)

Lynch, Gerard E. (New York)

Raggi, Reena (New York)

Sack, Robert David (New York)

Shields, Anne Y. (New York)

Attorneys(s) for Plaintiff

Antollino, Gregory (New York)

Bergstein, Stephen (New York)

Biesenbach, Ryan T (New York)

Cardinale, Richard J. (New York)

Attorneys(s) for Defendant

Griner, Amanda R. (New York)

Zabell, Saul D (New York)

Other Attorney(s)

Amend, Andrew W. (New York)

Anten, Todd (New York)

Blum, Richard Elliot (New York)

Bonauto, Mary L. (Massachusetts)

Burt, Thomas W. (Washington)

Cain, Heidi (New York)

Cooper, Leslie (New York)

Cottler, Michael B. (New York)

DeWeese, Mary E. (District of Columbia)

Dodge, Christopher D. (Massachusetts)

Dunn, Christopher (New York)

Esseks, James Dixon (New York)

Goldstein, Jennifer S. (District of Columbia)

Gonzalez-Pagan, Omar (New York)

Graves, Fatima Goss (District of Columbia)

Harrington, Eric A. (District of Columbia)

Harrist, Erin Beth (New York)

Horowitz, Jeremy D. (District of Columbia)

Kavey, Michael (New York)

Lapidus, Lenora M. (New Jersey)

Lask, Susan Chana (New York)

Lee, James L. (District of Columbia)

Lehn, David (District of Columbia)

Mahmood, Tiffany (New York)

Mar, Ria Tabacco (New York)

Marcus, Stephanie (District of Columbia)

McGowan, Sharon M. (New York)

Miller, Joseph W. (California)

Mooppan, Hashim M. (District of Columbia)

Morgan, Jeremiah L. (Virginia)

Mortara, Adam K. (Illinois)

Nevins, Gregory R. (Georgia)

O'Brien, Alice (District of Columbia)

Occhialino, Anne Noel (District of Columbia)

Olson, William J. (Virginia)

Protess, Amanda B. (New York)

Readler, Chad Andrew (District of Columbia)

Reilly, Robert T. (New York)

Rein, Frederick H. (New York)

Reinheimer, Justin T. (New York)

Sapinski, Sigismund L. Jr. (Connecticut)

Scarborough, Charles W. (District of Columbia)

Schneiderman, Eric T. (New York)

Schoenfeld, Alan E. (New York)

Skinner, Matthew (New York)

Stoll, Christopher (California)

Struble, Cory D. (New York)

Tate-Naghi, Nicole S. (California)

Thomas, Gillian L. (New York)

Titus, Herbert W. (Virginia)

Underwood, Barbara D. (District of Columbia)

Wheeler, Tom E. II (District of Columbia)

Whitney, Jonathan J. (Massachusetts)

Wu, Steven C. (New York)

Expert/Monitor/Master

Colby, Kimberlee Wood (Virginia)

Documents in the Clearinghouse

Document

2:10-cv-04334

Docket [PACER]

June 12, 2018

June 12, 2018

Docket
109

2:10-cv-04334

Memorandum of Law In Support of Defendants' Motion For Summary Judgment

Feb. 11, 2013

Feb. 11, 2013

Pleading / Motion / Brief
110

2:10-cv-04334

Defendants' Rule 56.1 Statement of Material Facts

Feb. 11, 2013

Feb. 11, 2013

Pleading / Motion / Brief
122

2:10-cv-04334

Plaintiff's Counter 56.1 Statement

April 7, 2013

April 7, 2013

Pleading / Motion / Brief
129

2:10-cv-04334

Plaintiff's 56.1 Statement In Support and Further Opposition

April 9, 2013

April 9, 2013

Pleading / Motion / Brief
131

2:10-cv-04334

Memorandum of Law In Opposition and Support

April 9, 2013

April 9, 2013

Pleading / Motion / Brief
145

2:10-cv-04334

Order [granting and denying in part summary judgment]

March 28, 2014

March 28, 2014

Order/Opinion
146

2:10-cv-04334

Second Amended Complaint

March 28, 2014

March 28, 2014

Complaint
223

2:10-cv-04334

Defendants' Pre-Trial Memorandum of Law

Zarda v. Altitude Express

Oct. 6, 2015

Oct. 6, 2015

Pleading / Motion / Brief
BL-140

15-03775

Brief of Amicus Curiae American Civil Liberties Union, et al. In Support of Plaintiffs-Appellants

Zarda v. Altitude Express

U. S. Court of Appeals for the Second Circuit

March 18, 2016

March 18, 2016

Pleading / Motion / Brief

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/6437755/zarda-v-altitude-express-inc/

Last updated Nov. 21, 2022, 3:24 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT against Altitude Express, Inc., Ray Maynard Disclosure Statement on Civil Cover Sheet completed -NO,, filed by Donald Zarda. (Attachments: # 1 Civil Cover Sheet) (Serret, Liliana) (Entered: 09/29/2010)

2 Civil Cover Sheet

View on PACER

Sept. 23, 2010

Sept. 23, 2010

PACER

Summons Issued

Sept. 23, 2010

Sept. 23, 2010

PACER

Filing Fee Received

Sept. 23, 2010

Sept. 23, 2010

PACER

Summons Issued as to Altitude Express, Inc., Ray Maynard. (Serret, Liliana)

Sept. 23, 2010

Sept. 23, 2010

PACER

FILING FEE: $ 350.00, receipt number 4653019994 (Serret, Liliana)

Sept. 23, 2010

Sept. 23, 2010

PACER

Case Ineligible for Arbitration

Sept. 30, 2010

Sept. 30, 2010

PACER

Case Ineligible for Arbitration (Bollbach, Jean)

Sept. 30, 2010

Sept. 30, 2010

PACER
2

SUMMONS Returned Executed by Donald Zarda. Altitude Express, Inc. served on 9/27/2010, answer due 10/18/2010. (Antollino, Gregory) (Entered: 10/21/2010)

Oct. 21, 2010

Oct. 21, 2010

PACER
3

WAIVER OF SERVICE Returned Executed by Donald Zarda. Ray Maynard waiver sent on 9/24/2010, answer due 11/23/2010. (Antollino, Gregory) (Entered: 10/21/2010)

Oct. 21, 2010

Oct. 21, 2010

PACER
4

NOTICE of Appearance by Saul D. Zabell on behalf of Altitude Express, Inc., Ray Maynard (aty to be noticed) (Zabell, Saul) (Entered: 11/01/2010)

Nov. 1, 2010

Nov. 1, 2010

PACER
5

Letter MOTION for pre motion conference re 1 Complaint by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 11/23/2010)

Nov. 23, 2010

Nov. 23, 2010

PACER

ORDER granting 5 Motion for Pre Motion Conference. The Court has received the defendants' letter, dated November 23, 2010, requesting a pre-motion conference in anticipation of moving to dismiss. IT IS HEREBY ORDERED that the parties shall participate in a telephone pre-motion conference on Wednesday, December 8, 2010 at 2:00 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. Prior to the date of the conference, plaintiff may submit a letter pursuant to Individual Rule III.A explaining why the proposed motion is likely to be unsuccessful. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/23/2010. (Cooney, John)

Nov. 23, 2010

Nov. 23, 2010

PACER

Order on Motion for Pre Motion Conference

Nov. 23, 2010

Nov. 23, 2010

PACER
6

Letter in response to request for premotion conference by Donald Zarda (Attachments: # 1 Exhibit cited case) (Antollino, Gregory) (Entered: 11/30/2010)

2 Exhibit cited case

View on PACER

Nov. 30, 2010

Nov. 30, 2010

PACER
7

MOTION to Adjourn Conference to an earlier or later time the same day by Donald Zarda. (Antollino, Gregory) (Entered: 11/30/2010)

Nov. 30, 2010

Nov. 30, 2010

PACER

Order on Motion to Adjourn Conference

Dec. 1, 2010

Dec. 1, 2010

PACER

ORDER granting 7 Motion to Adjourn Conference. By letter dated November 30, 2010, plaintiff requested to reschedule the December 8, 2010 pre-motion conference. IT IS HEREBY ORDERED that plaintiff's request is granted. The pre-motion conference is rescheduled for Thursday, December 9, 2010 at 1:30 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/1/2010. (Cooney, John)

Dec. 1, 2010

Dec. 1, 2010

PACER
8

Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone pre motion Conference held on 12/9/2010; motion to be filed by 1/10/11; response by 2/10/11; relpy by 2/24/11; oral argument 3/11/11 at 1:30 pm; submit the proposed scheudle to the court by 12/17/10 (Court Reporter ftr 1:38 - 1:51.) (Bollbach, Jean) (Entered: 12/09/2010)

Dec. 9, 2010

Dec. 9, 2010

PACER

Order

Dec. 9, 2010

Dec. 9, 2010

PACER

ORDER. IT IS HEREBY ORDERED that the automatic referral to the Magistrate Judge for non-dispositive pretrial matters under Local Civil Rule 72.2 is withdrawn in this case and all proceedings, including discovery conferences and all other non-dispositive pre-trial matters, will occur before the District Judge, unless a specific referral is made to the Magistrate Judge at some future time. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/9/2010. (Cooney, John)

Dec. 9, 2010

Dec. 9, 2010

PACER
9

Proposed Scheduling Order by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 12/10/2010)

Dec. 10, 2010

Dec. 10, 2010

PACER
10

SCHEDULING ORDER: deadline for commencement of moiton for joinder of additional parties or amendement of pleadings: March 4, 2011; discovery by Sept. 9, 2011; dispositive motion by Oct. 7, 2011; final conf. Oct 21, 2011 at 10:00 am. Ordered by Judge Joseph F. Bianco on 12/10/2010. (Bollbach, Jean) (Entered: 12/14/2010)

Dec. 10, 2010

Dec. 10, 2010

PACER
11

Corporate Disclosure Statement by Altitude Express, Inc. (Zabell, Saul) (Entered: 12/16/2010)

Dec. 16, 2010

Dec. 16, 2010

PACER
12

Letter by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 01/10/2011)

Jan. 10, 2011

Jan. 10, 2011

PACER
13

ANSWER to 1 Complaint by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 01/10/2011)

Jan. 10, 2011

Jan. 10, 2011

PACER
14

First MOTION for Discovery Hearing or Conference by Donald Zarda. (Antollino, Gregory) (Entered: 02/04/2011)

Feb. 4, 2011

Feb. 4, 2011

PACER
15

RESPONSE in Opposition re 14 First MOTION for Discovery Hearing or Conference filed by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/07/2011)

Feb. 7, 2011

Feb. 7, 2011

PACER

ORDER re 14 : The plaintiff's application must be redirected to Judge Bianco. By order dated December 9, 2010, Judge Bianco withdrew the automatic referral to the undersigned for non-dispositive pretrial matters. Ordered by Magistrate Judge Arlene R. Lindsay on 2/7/2011. c/ecf (Miller, Dina)

Feb. 7, 2011

Feb. 7, 2011

PACER

SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference on Wednesday, February 9, 2011 at 4:00 p.m. to discuss plaintiff's letter dated February 4, 2011. At that time, counsel for plaintiff shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/7/2011. (Cooney, John)

Feb. 7, 2011

Feb. 7, 2011

PACER

Scheduling Order

Feb. 7, 2011

Feb. 7, 2011

PACER

Order on Motion for Discovery

Feb. 7, 2011

Feb. 7, 2011

PACER
16

Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone status Conference held on 2/9/2011. (Court Reporter Owen Wicker.) (Bollbach, Jean) (Entered: 02/10/2011)

Feb. 9, 2011

Feb. 9, 2011

PACER
17

Letter MOTION to Compel Discovery by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/11/2011)

Feb. 11, 2011

Feb. 11, 2011

PACER
18

RESPONSE to Motion re 17 Letter MOTION to Compel Discovery filed by Donald Zarda. (Antollino, Gregory) (Entered: 02/11/2011)

Feb. 11, 2011

Feb. 11, 2011

PACER
19

Letter MOTION to Compel Discovery by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit) (Zabell, Saul) (Entered: 02/11/2011)

2 Exhibit

View on PACER

Feb. 11, 2011

Feb. 11, 2011

PACER

SCHEDULING ORDER: The Court has received the defendants' letter informing the court of a discovery dispute. IT IS HEREBY ORDERED that the parties shall participate in a telephone conference on Friday, February 25, 2011 at 2:30 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/15/2011. (Cooney, John)

Feb. 15, 2011

Feb. 15, 2011

PACER

Scheduling Order

Feb. 15, 2011

Feb. 15, 2011

PACER
20

Letter MOTION to Adjourn Conference scheduled for February 25, 2011 at 2:30 pm by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/16/2011)

Feb. 16, 2011

Feb. 16, 2011

PACER

Scheduling Order

Feb. 18, 2011

Feb. 18, 2011

PACER

SCHEDULING ORDER:The Court has received the defendants' letter requesting an adjournment of the telephone conference scheduled for February 25, 2011. IT IS HEREBY ORDERED that the telephone conference is rescheduled for Tuesday, March 1, 2011 at 2:30 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/18/2011. (Cooney, John)

Feb. 18, 2011

Feb. 18, 2011

PACER
21

MOTION to Amend/Correct/Supplement 1 Complaint by Donald Zarda. (Attachments: # 1 Exhibit proposed amended complaint) (Antollino, Gregory) (Entered: 02/22/2011)

2 Exhibit proposed amended complaint

View on PACER

Feb. 22, 2011

Feb. 22, 2011

PACER
22

RESPONSE in Opposition re 21 MOTION to Amend/Correct/Supplement 1 Complaint filed by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/23/2011)

Feb. 23, 2011

Feb. 23, 2011

PACER
23

REPLY in Support re 21 MOTION to Amend/Correct/Supplement 1 Complaint filed by Donald Zarda. (Antollino, Gregory) (Entered: 02/23/2011)

Feb. 23, 2011

Feb. 23, 2011

PACER
24

Letter MOTION to Adjourn Conference currently scheduled for March 4, 2011 at 1:15 p.m. by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/28/2011)

Feb. 28, 2011

Feb. 28, 2011

PACER

SCHEDULING ORDER: Due to a conflict in the Court's calendar, the telephone conference concerning the discovery dispute scheduled for March 1, 2011 is rescheduled for Friday, March 4, 2011 at 1:15 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/28/2011. (Cooney, John)

Feb. 28, 2011

Feb. 28, 2011

PACER

Scheduling Order

Feb. 28, 2011

Feb. 28, 2011

PACER

ORDER granting 24 Motion to Adjourn Conference. The Court has received the defendants' letter requesting an adjournment of the telephone conference concerning the discovery dispute scheduled for March 4, 2011. IT IS HEREBY ORDERED that the telephone conference is rescheduled for Friday, March 11, 2011 at 9:30 a.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/2/2011. (Cooney, John)

March 2, 2011

March 2, 2011

PACER

Order on Motion to Adjourn Conference

March 2, 2011

March 2, 2011

PACER
25

Letter Requesting pre-motion conference by Donald Zarda (Antollino, Gregory) (Entered: 03/08/2011)

March 9, 2011

March 9, 2011

PACER

Scheduling Order

March 9, 2011

March 9, 2011

PACER

SCHEDULING ORDER: The Court has received the plaintff's letter, dated March 8, 2011, requesting a pre-motion conference in anticipation of moving to disqualify defendants' counsel. IT IS HEREBY ORDERED that the parties shall discuss this matter at the telephone conference concerning the discovery dispute scheduled for March 11, 2011 at 9:30 a.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/9/2011. (Cooney, John)

March 9, 2011

March 9, 2011

PACER
26

REPLY in Opposition re 25 Letter filed by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 03/10/2011)

March 10, 2011

March 10, 2011

PACER
27

Minute Order. for proceedings held before Judge Joseph F. Bianco:granting 21 Motion to Amend/Correct/Supplement; Telephone Conference held on 3/11/2011. Amended complaint to be filed by 3/18/11 (Court Reporter ftr 9:47 - 10:02.) (Bollbach, Jean) (Entered: 03/11/2011)

March 11, 2011

March 11, 2011

PACER
28

AMENDED COMPLAINT against Altitude Express, Inc., Ray Maynard, filed by Donald Zarda. (Antollino, Gregory) (Entered: 03/11/2011)

March 11, 2011

March 11, 2011

RECAP
29

ORDER granting 19 Motion to Compel; ( Amended Pleadings due by 3/18/2011.) The amended complaint shall be filed no later than March 18, 2011. ( Signed by: Joseph F. Bianco, United States District Judge, on March 11, 2011). (Fagan, Linda) (Entered: 03/16/2011)

March 11, 2011

March 11, 2011

PACER
30

ANSWER to 28 Amended Complaint by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 03/22/2011)

March 22, 2011

March 22, 2011

PACER
31

First MOTION to Compel by Donald Zarda. (Attachments: # 1 Exhibit Waiver form) (Antollino, Gregory) (Entered: 04/08/2011)

2 Exhibit Waiver form

View on PACER

April 8, 2011

April 8, 2011

PACER
32

RESPONSE in Opposition re 31 First MOTION to Compel filed by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit) (Zabell, Saul) (Entered: 04/12/2011)

2 Exhibit

View on PACER

April 12, 2011

April 12, 2011

PACER
33

REPLY in Support re 31 First MOTION to Compel filed by Donald Zarda. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Antollino, Gregory) (Entered: 04/12/2011)

2 Exhibit 1

View on PACER

3 Exhibit 2

View on PACER

April 12, 2011

April 12, 2011

PACER
34

MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Zabell, Saul) (Entered: 04/13/2011)

2 Memorandum in Support

View on PACER

3 Declaration

View on PACER

4 Exhibit

View on PACER

5 Exhibit

View on PACER

6 Exhibit

View on PACER

April 13, 2011

April 13, 2011

PACER
35

MOTION to Strike 34 MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. as excessive and in violation of the local rules and the Court's individual rules by Donald Zarda. (Antollino, Gregory) (Entered: 04/13/2011)

April 13, 2011

April 13, 2011

PACER
36

Letter in response to Plaintiff's surreply by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 04/13/2011)

April 13, 2011

April 13, 2011

PACER
37

RESPONSE in Opposition re 35 MOTION to Strike 34 MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. as excessive and in violation of the local rules and the Court's individual rules filed by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 04/14/2011)

April 14, 2011

April 14, 2011

PACER
38

Letter MOTION for pre motion conference by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit) (Zabell, Saul) (Entered: 04/14/2011)

2 Exhibit

View on PACER

April 14, 2011

April 14, 2011

PACER
39

Letter in response to request for premotion conference to quash subpoena by Donald Zarda (Antollino, Gregory) (Entered: 04/18/2011)

April 18, 2011

April 18, 2011

PACER
40

Letter concerning new matters in discovery by Donald Zarda (Antollino, Gregory) (Entered: 05/05/2011)

May 5, 2011

May 5, 2011

PACER
41

REPLY in Opposition to Plaintiff's 5/5/11 letter concerning new matters in discovery filed by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 05/05/2011)

May 5, 2011

May 5, 2011

PACER
42

Letter in further support of discovery by plaintiff and other relief by Donald Zarda (Antollino, Gregory) (Entered: 05/05/2011)

May 5, 2011

May 5, 2011

PACER

ORDER. By letter dated May 5, 2011, plaintiff requests a pre-motion conference on the issue of disqualifying counsel for defendants from representing non-party witnesses. IT IS HEREBY ORDERED that the pre-motion conference requirement is waived. The parties shall adhere to the following briefing schedule for plaintiff's motion. Plaintiff's motion is due June 6, 2011; Defendants' response is due July 6, 2011; Plaintiff's reply is due July 20, 2011. The Court will determine if oral argument is necessary after the matter is fully submitted. IT IS FURTHER ORDERED that plaintiff's pending motion to strike defendants' 176-page discovery motion is denied. IT IS FURTHER ORDERED that the parties abide by the following briefing schedule: plaintiff's opposition is due by May 27, 2011 and defendants' reply is due June 8, 2011. IT IS FURTHER ORDERED that the page limit requirement is waived for plaintiff's opposition. IT IS FURTHER ORDERED that the Court will consider plaintiff's request to compel plaintiff's deposition after the above-referenced matters are decided. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/6/2011. (Cooney, John)

May 6, 2011

May 6, 2011

PACER

Order

May 6, 2011

May 6, 2011

PACER
43

Letter regarding Your Honor's May 6, 2011 Order by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 05/12/2011)

May 12, 2011

May 12, 2011

PACER
44

Letter in response to defendants' letter of 5/12/11 by Donald Zarda (Antollino, Gregory) (Entered: 05/12/2011)

May 12, 2011

May 12, 2011

PACER
45

MEMORANDUM in Opposition re 34 MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. filed by Donald Zarda. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Antollino, Gregory) (Entered: 05/27/2011)

2 Exhibit A

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3 Exhibit B

View on PACER

May 27, 2011

May 27, 2011

PACER
46

MOTION to Disqualify Counsel and to hold two witnesses in contempt and for other relief by Donald Zarda. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Errata G) (Antollino, Gregory) (Entered: 06/06/2011)

2 Exhibit A

View on PACER

3 Exhibit B

View on PACER

4 Exhibit C

View on PACER

5 Exhibit D

View on PACER

6 Exhibit E

View on PACER

7 Exhibit F

View on PACER

8 Errata G

View on PACER

June 6, 2011

June 6, 2011

PACER
47

MEMORANDUM in Support re 46 MOTION to Disqualify Counsel and to hold two witnesses in contempt and for other relief filed by Donald Zarda. (Antollino, Gregory) (Entered: 06/06/2011)

June 6, 2011

June 6, 2011

PACER
48

MEMORANDUM in Support re 46 MOTION to Disqualify Counsel and to hold two witnesses in contempt and for other relief SIGNED LETTER BRIEF (DOCUMENT # 47 IS UNSIGNED) filed by Donald Zarda. (Antollino, Gregory) (Entered: 06/06/2011)

June 6, 2011

June 6, 2011

PACER
49

REPLY in Support re 34 MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. filed by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 06/08/2011)

June 8, 2011

June 8, 2011

PACER
50

MEMORANDUM in Opposition re 48 Memorandum in Support filed by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Declaration of Saul Zabell, Esq.) (Zabell, Saul) (Entered: 07/06/2011)

2 Declaration of Saul Zabell, Esq.

View on PACER

July 6, 2011

July 6, 2011

PACER
51

REPLY in Support re 46 MOTION to Disqualify Counsel and to hold two witnesses in contempt and for other relief filed by Donald Zarda. (Antollino, Gregory) (Entered: 07/13/2011)

July 13, 2011

July 13, 2011

PACER
52

Letter MOTION for Extension of Time to Complete Discovery by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 08/09/2011)

Aug. 9, 2011

Aug. 9, 2011

PACER
53

Letter MOTION to Adjourn Conference by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 08/10/2011)

Aug. 10, 2011

Aug. 10, 2011

PACER

SCHEDULING ORDER: IT IS HEREBY ORDERED that oral argument is scheduled for Wednesday, August 24, 2011 at 2:00 p.m. for plaintiff's motion to disqualify counsel from representing non-party witnesses and defendants' motion to compel. In addition, the Court has received defendants' request for an extension of time to complete discovery. IT IS FURTHER ORDERED that a new discovery deadline will be set following the Court's ruling on the pending motions. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/10/2011. (Cooney, John)

Aug. 10, 2011

Aug. 10, 2011

PACER

Scheduling Order

Aug. 10, 2011

Aug. 10, 2011

PACER

Order on Motion to Adjourn Conference

Aug. 11, 2011

Aug. 11, 2011

PACER

ORDER granting 53 Motion to Adjourn Conference. By letter dated August 10, 2011, defendants request to adjourn the oral argument scheduled for August 24, 2011 until after Labor Day. IT IS HEREBY ORDERED that, on consent, defendants' request is granted. Oral argument concerning plaintiff's motion to disqualify counsel from representing non-party witnesses and defendants' motion to compel is rescheduled for Monday, September 12, 2011 at 3:00 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/11/2011. (Cooney, John)

Aug. 11, 2011

Aug. 11, 2011

PACER
54

Second MOTION to Adjourn Conference for September 12 to September 19 by Donald Zarda. (Antollino, Gregory) (Entered: 08/24/2011)

Aug. 24, 2011

Aug. 24, 2011

PACER

ORDER granting 54 Motion to Adjourn Conference. By letter dated August 24, 2011, plaintiff requests to adjourn the oral argument scheduled for September 12, 2011 until September 19, 2011 at 4:30 p.m. IT IS HEREBY ORDERED that, on consent, plaintiff's request is granted. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/24/2011. (Cooney, John)

Aug. 24, 2011

Aug. 24, 2011

PACER

Order on Motion to Adjourn Conference

Aug. 24, 2011

Aug. 24, 2011

PACER
55

Minute Entry for proceedings held before Judge Joseph F. Bianco:Oral Argument held on 9/19/2011 at 4:30. Attorney for plaintiff, Gregory Antollino present. Saul Zabell attorney for defendant present. Case called. Conference held. Argument heard. Plaintiff's motion to compel; within 10 days, def's to produce names and addresses of co-workers for 2009 and 2010 summers, names and addresses of two customers at issue and jump log. Defts.' motion to compel plaintiff to produce any facebook communication from 2008-10 that expressed emotional trauma and tax returns. Other financial records related to other company is denied at this juncture. Medical treatment records from 2008-present to be provided to the Court for ex parte in camera review. Denied in all other respects. Plaintiffs' motion to disqualify counsel is denied. Motion for costs denied. Parties to submit deposition schedule, with plaintiff proceeding first, to the Court within two weeks. (Tape #4:41-5:41.) (Padilla, Kristin) (Entered: 10/03/2011)

Sept. 19, 2011

Sept. 19, 2011

PACER
56

Letter informing the court as to agreed upon discovery deadline by Donald Zarda (Antollino, Gregory) (Entered: 10/19/2011)

Oct. 19, 2011

Oct. 19, 2011

PACER

Scheduling Order

Oct. 20, 2011

Oct. 20, 2011

PACER

SCHEDULING ORDER: IT IS HEREBY ORDERED that discovery in this case shall end on March 23, 2012. The parties shall participate in a telephone conference on Wednesday, April 4, 2012 at 11:00 a.m. At that time, counsel for the plaintiff shall initiate the call, and once all parties are on the line, shall contact chambers at (631)712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/20/2011. (Maxwell, Rita)

Oct. 20, 2011

Oct. 20, 2011

PACER
57

Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone status Conference held on 11/15/2011; RE: deposition dispute. Non-party witnesses David Kenglo and Rose Orellana want to be deposed together at the same time. Court rules that the non-party witnesses will be deposed separately and will not be present at each other's deposition. (Tape #ftr 1:32 - 1:41.) (Bollbach, Jean) (Entered: 11/16/2011)

Nov. 15, 2011

Nov. 15, 2011

PACER

Add and Terminate Judges

Nov. 18, 2011

Nov. 18, 2011

PACER

Magistrate Judge Gary R. Brown added. Magistrate Judge Arlene R. Lindsay no longer assigned to case. (Bowens, Priscilla)

Nov. 18, 2011

Nov. 18, 2011

PACER

Order on Motion to Strike

Dec. 9, 2011

Dec. 9, 2011

PACER

Order on Motion for Extension of Time to Complete Discovery

Dec. 9, 2011

Dec. 9, 2011

PACER

ORDER terminating 35 Motion to Strike. Motion terminated. See Order dated May 6, 2011. Ordered by Judge Joseph F. Bianco on 12/9/2011. (Maxwell, Rita)

Dec. 9, 2011

Dec. 9, 2011

PACER

ORDER terminating 52 Motion for Extension of Time to Complete Discovery. Motion terminated. See Scheduling Order dated October 20, 2011. Ordered by Judge Joseph F. Bianco on 12/9/2011. (Maxwell, Rita)

Dec. 9, 2011

Dec. 9, 2011

PACER

Order on Motion to Compel

Dec. 12, 2011

Dec. 12, 2011

PACER

Case Details

State / Territory: New York

Case Type(s):

Equal Employment

Labor Rights

Special Collection(s):

Multi-LexSum (in sample)

Key Dates

Filing Date: Sept. 23, 2010

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

A gay man fired from his job and his estate

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Altitude Express, Inc., Private Entity/Person

Defendant Type(s):

Retailer

Case Details

Causes of Action:

State law

Title VII (including PDA), 42 U.S.C. § 2000e

Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219

Availably Documents:

Trial Court Docket

Complaint (any)

Non-settlement Outcome

Any published opinion

U.S. Supreme Court merits opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

None yet

Source of Relief:

None yet

Issues

General:

Gay/lesbian/transgender

Discrimination-area:

Discharge / Constructive Discharge / Layoff

Discrimination-basis:

Sex discrimination

Sexual orientation