On May 1, 2020, the federal district court for the Southern District of New York dismissed a lawsuit filed by Andrew Straw (a lawyer currently suspended from the practice of law in the State of Indiana) against Wolters Kluwer, a legal publisher. (20 CV 3251 S.D. NY). Straw claimed that the publisher violated his rights under the Americans with Disabilities Act by citing to an opinion disciplining him. The relevant parts of the opinion are quoted here:
Plaintiff contends that “[t]he book ridiculed me by making me seem totally incompetent just for asking [for] this information[. I]t seems the only information the defendants relied upon was the Indiana discipline order, In Re Straw, 68 N.E.3d 1070 (Ind. 2/14/2017).” (Id. at ¶ 46). He states that “the language [to which he] object[s] concerns [his] bogus Indiana Supreme Court discipline.” (Id. at ¶ 20).
In that disciplinary action, In Re Straw, 68 N.E.3d 1070 (Ind. 2017), cert. denied sub nom. Straw v. Ind. Supreme Court, 137 S. Ct. 2309 (2017), the Indiana Supreme Court suspended Plaintiff from the practice of law for violations of Indiana Professional Conduct Rule 3.1, which prohibits bringing a proceeding or asserting an issue unless there is a nonfrivolous basis in law and fact. Plaintiff asserts that the publisher “should have asked me before ridiculing me,” and that “this blistering attack in a major book on legal ethics cannot stand.” (Id. at ¶ 47.) Plaintiff also rehashes arguments that he made in his suspension proceedings and elsewhere that his suit against the ABA was not frivolous because he did not seek to collect private data but rather sought to amend “form 509” in order to collect information about disability, in addition to race and gender. (Id. at ¶ 49).
Plaintiff styles this action as a suit under “Title II/Title V” of the ADA, alleging that the publisher and its employees retaliated against him for his having filed the disability discrimination suit, Straw v. ABA., No. 14-CV-0519 (N.D. Ill. 2015), which is one of the suits that was deemed frivolous and was part of the basis for his suspension from the practice of law in Indiana. Plaintiff invokes “42 U.S.C. § 12203 and 28 C.F.R. § 35.134 [which] prohibit[s] retaliation by anyone.” (ECF 2 at 16, ¶ 60). He argues that “[r]epublishing the vicious attacks … amount to additional retaliation and collusion with that state supreme court.” (Id. at ¶ 62)……
“To state a claim for retaliation under the ADA …, a plaintiff must show: (i) he or she was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.” Patrick v. Success Acad. Charter Sch., Inc., 354 F. Supp. 3d 185, 226 (E.D.N.Y. 2018) (addressing retaliation in the public services context) (citing Lawton v. Success Acad. Charter Sch., Inc., 323 F. Supp. 3d 353, 366 (E.D.N.Y. 2018) (quoting Weixel v. Bd. of Educ., 287 F.3d 138, 148 (2d Cir. 2002))); see also Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999) (“[I]t is appropriate to apply the framework used in analyzing retaliation claims under Title VII in analyzing a claim of retaliation under the ADA.”).
Generally, “any activity designed “to resist or antagonize …; to contend against; to confront; resist; [or] withstand” discrimination prohibited by Title VII constitutes a protected oppositional activity.” Littlejohn v. City of New York, 795 F.3d 297, 317 (2d Cir. 2015) (quoting Crawford v. Metropolitan Government of Nashville & Davidson Cnty., 555 U.S. 271, 276 (2009)). Here, however, Plaintiff fails to plead any facts that could satisfy the third element of a retaliation claim. Publishing a book that accurately reports the Indiana state court’s disciplinary decision against Plaintiff, even if he continues to dispute the court’s decision, does not qualify as taking adverse action against Plaintiff.
Nor does Plaintiff plead any facts that could give rise to an inference that his suspension decision was used as an illustration in a book on legal ethics because of retaliatory animus against Plaintiff for his opposition to disability discrimination. Because Plaintiff fails to plead facts suggesting any causal connection between his ABA suit opposing discrimination and any adverse action against him, Plaintiff fails to state a claim that any Defendant retaliated against him in violation of his rights under the ADA.”
The court also rejected a claim for intentional infliction of emotional distress.
Ed Clinton, Jr.
Note: Andrew Straw is a member of the bar of the State of Virginia and is currently in good standing.