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...merits without deferring to the state court's competency finding. Pp. 15-21. 3. The Fifth Circuit employed an improperly restrictive test when it considered...simply not relevant to whether a prisoner can be executed so long as he is aware that the State has identified the link between his crime and the punishment to be inflicted. This test ignores the...the federal appellate court employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits. We therefore reverse the judgment of the Court of Appeals for...

...reading that liability attaches only to knowing violations, but the text as finally adopted points to the traditional understanding of willfulness in the civil sphere. Their other textual and structural...to measure "increase," and Safeco's reading has a foundation in the statutory text and a sufficiently convincing justification to have persuaded the District Court to adopt it and rule in Safeco's...-pellucid statutory text, Safeco's reading was not objectively unreasonable, and so falls well short of raising the "unjustifiably high risk" of violating the statute necessary for reckless liability. Pp...

.... Gay, that "[g]ood faith in this context is entwined with the legal certainty test, so that a defendant will be able to remove the case to federal court by showing to a legal certainty that the amount...legal certainty. But, as Abrego Abrego sets forth, the "legal certainty," or "good faith," test from St Paul Mercury is applicable where the complaint at issue specifies an amount in...

...Court to grant a party relief from a final judgment based upon, inter alia, "excusable neglect." FED.R.CIV.P. 60(b) (2007). The test for "excusable neglect" is equitable, and requires us to..., Nara argued that he established his mental incompetency to plead guilty, articulated the test applied by both federal and state courts, and compared the facts of his case to...

...turn test and a one-leg stand test. You never even heard he failed them. I know you didn't hear why he failed them. . . . I believe the El Paso Court of Appeals decided this exact case and they found...motion to suppress." Such a supplemental record may have been prepared and filed, but it is not in our records. For the reasons set out in the text of this opinion, we cannot simply "assume" its...trial court. If the parties cannot agree on whether or how to correct the reporter's record so that the text accurately discloses what occurred in the trial court and the exhibits are accurate, the...

...restraints in 1975, according to respondent, shows Congress ratified the rule. This is not so. The text of the Consumer Goods Pricing Act did not codify the rule of per se illegality...

...will be subjected to harm in the future." Andrews asked for injunctive relief requiring DCR "to test every inmate currently in the Department for contagious diseases and to house and treat each inmate...risk: There is a high probability of future harm since the [DCR] Director still fails to test persons brought into the institutions and still continues to...

...)); Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999). This test has objective and subjective elements: the.... As to the first test, the court reasoned that the EEOC would not reasonably have been alerted to the alleged 1994 conduct because Alfano's EEOC charge made no allegation regarding..., there is even less reason to think that the EEOC would have discovered this disciplinary action in the course of its investigation into Alfano's charges. As to the second test...

...rights, its text must be phrased in terms of the persons benefited. E.g., Cannon v. University of Chicago, 441 U.S. 677...." Touche Ross Co. v. Redington, 442 U.S. 560, 576 (1979). For a statute to create such private rights, its text must be "phrased in terms of the persons...upon those beneficiaries" (citing Cannon, supra, at 690-693, n. 13)). Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual...

...). Under this rule, we may take notice of waived errors only if they can be characterized as "plain errors." As we have repeatedly emphasized, the plain error test is a strict one: "[A]n alleged...-661 (applying plain error test). See, also, Johnson v. Duckworth (C.A.7, 1981), 650 F.2d 122, 125-126 (explaining why alternates are...jury's deliberations. We think Olano gives highly persuasive reasons why no such exception is necessary. Applying the test for plain error, we cannot find on this record...

..., 482 U.S. 755, 760 (1987). We have held that even an award of nominal damages suffices under this test. See Farrar v. Hobby, 506 U.S...." Brief for United States as Amicus Curiae 28. Although we do not doubt the ability of district courts to perform the nuanced "three thresholds" test required by the "catal...fundamental laws are not to proceed with impunity,'" fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante, at 6-7, the catalyst theory's purported "merit test...

...that the Strickland performance and prejudice test has been "clearly established" — not that a particular theory of ineffective assistance derived from Strickland has been clearly...an "adjudication on the merits" triggering the "unreasonable application" test set forth in § 2254(d)(1). In that case, Washington argued that..., we found it unnecessary to decide the question because Washington's petition lacked merit under either the AEDPA "unreasonable application" test or pre-AEDPA de novo review. See id. at...

...test was met). But cf. 3 James Wm. Moore, Moore's Federal Practice § 15.19[3][c], at 15-88 to 15-89 (3d ed. 2001) ("Legal counsel shared by the original and new defendants is not sufficient.... ...

...," Qualitex, supra, at 165, but that language does not mean that competitive necessity is a necessary test for functionality. Where the design is functional under the Inwood...." 514 U.S., at 165. The Court of Appeals in the instant case seemed to interpret this language to mean that a necessary test for functionality is...

...Robert Scherer located Mr. Pugh at his residence and administered a breathalyzer test. The test registered.008 percent breath alcohol content ("BAC"), which indicated consumption but not intoxication.... In response to another citizen complaint on July 18, 1997, Mayor Long ordered a breathalyzer test for Mr. Pugh. The officer who tested Mr. Pugh reported a BAC of .04 percent and noted that he...alcohol if the city had a "reasonable suspicion" of consumption. R.30, Ex.B. An employee whose test registered the presence of alcohol could continue employment on a conditional basis by consenting to...

...text of section 1983 will not bear such a reading. Bd. of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403...stringent test, and "a showing of simple or even heightened negligence will not suffice" to prove municipal culpability. See id. It follows that each and any policy which allegedly caused.... The test that we apply for reviewing the sufficiency of the evidence is the Boeing standard in n. 7 supra. What w...

...new pleading requirement imposed by paragraph (b)(2) in light of the text of the PSLRA and its legislative history. They have generally come to one of two conclusions...(S.D.N Y 1997). Our own review of the text and legislative history leads us to a middle ground. We conclude that the PSLRA effectively raised the nationwide...follow. In order to gauge the implications of paragraph (b)(2), we apply familiar canons of statutory construction. We look first to the text of the statute. If that language is...

...lesser-included offense instruction, a two prong test applies: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must...

...," under which a supervisor with reasonable suspicion that an employee was under the influence of drugs or alcohol could order the employee to take a urine test. On August 3, 1988, Chuck Mabie, the...General Foreman of the Maintenance of Equipment Car Shop where Graham worked, ordered plaintiff to submit to a urine test. The sample tested...." The last chance waiver (or last chance agreement) is the means by which LIRR allows a worker who fails a substance abuse test to be reinstated after passing a fitness exam, and on condition that he...

...the "prevailing party", he must show he was the "catalyst' for defendant's changed behavior. The first prong of the catalyst test is whether there is a causal connection between the suit and the...

...alternates breach the sanctity of the jury room. The application of a presumptive prejudice test is consistent with our prior cases where the type of error involved made it difficult to...

.... In addition to the cases discussed in the ...tougher and truer law than the dead words of the written text." On the other hand, the language of § 1983, read against the background of the same legislative history...substitute was rejected principally on constitutional grounds, see id., at 804 (Rep. Poland), it is plain from the text of the second conference substitute — which limited liability to those who...

...petitioner's state conviction. Under the Strickland test, had appellate counsel done so, petitioner would have stood a reasonable probability of satisfying the second prong of that test — i.e...the minimum standard of adequacy required by the Constitution as set forth in the first prong on the Strickland test. At...

...that, but for counsel's unprofessional errors, the result of the proceeding would have been different, id., at 694. Because the Strickland test qualifies as "clearly established...Federal law, as determined by the Supreme Court," this Court's precedent "dictated" that the Virginia Supreme Court apply that test in entertaining Williams' ineffective-assistance claim. See...is incorrect. It would impose a test for determining when a legal rule is clearly established that simply cannot be squared with the real practice of decisional law...

...language of Carrier, but the logic of that opinion as well. We explained clearly that "cause" under the cause and prejudice test must be something external to the petitioner, something that...

.... BIRCH, Circuit Judge: This case raises the question of the viability and scope of the "ca...other fee-shifting statutes. Because we hold that the catalyst test remains available in this circuit and because the district court incorrectly applied the catalyst test, we VACATE and REMAND...on the viability of the catalyst test or on the other elements of the catalyst test. On February 20, 1998, Appellants filed this appeal...

...competency, intelligence, suggestibility, and psychopathy, and also administered the Rorschach Inkblot Test and the Violence Risk Assessment Test. (2 CR 236-37; 35 RR 113-17.) On...investigation is not a litmus test for deficient performance. Moreover, Jones's complaint that the investigation was done on the eve of trial and terminated prematurely is not supported in the record. Trial...their own competency expert. Dr. Finn first evaluated Jones four months before trial. He administered the Georgia Court Competency Test and, like Dr. Turbeville before him, found Jones competent to...

...] had accused Lubaina, a physician, of having an affair with another physician, and claimed that their oldest son, Tariq, was not his. A subsequent paternity test showed that claim to be false.... Thompson, 501 U.S. 722, 750 (1991). In this circuit, to determine whether a federal claim has been procedurally defaulted, we apply the three-prong test initially laid out in...errors of counsel collectively," the court applied the wrong standard in assessing any prejudice from trial counsel's errors. (Traverse, Doc. No. 71 at PageID 1723.) Ahmed argues that "the test to be...

...the use of excessive force. To test the link between Moore's action and respondent's injury, it must be asked whether a full review of Burns' record reveals that Moore should have concluded that Burns...municipal liability for a hiring decision from collapsing into respondeat superior liability, a court must carefully test the link between the policymaker's inadequate decision and the particular...in this case was insufficient to support a finding that, in hiring Burns, Sheriff Moore disregarded a known or obvious risk of injury. To test the link between Sheriff Moore's hiring decision and...

.... It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, cf...be shown by a preponderance of the evidence to have determined the outcome. Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of...test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bernal, supra, at 872-874. The defendant must show...

...available to establish a plaintiff's status as prevailing party, at least five other circuits have specifically held that the catalyst test...Farrar does not preclude a catalyst test. A catalyst test is an alternate theory for determining the prevailing party if no relief on the merits is obtained...`prevailing' under § 1988. . . . The first we now call the `merits' test. The second is already known as the `catalyst' test...

...alteration of the legal relationship of the parties." Id., at 792-793. Under this test, the plaintiffs in Garland were prevailing parties because they "obtained a judgment vindicating [their...support prevailing party status under the test we adopt today. In that case, the District Court declared unconstitutionally vague a regulation requiring that "non-school-hour meetings be conducted only...

...in the summer of 1997. Paz's polygraph test result indicated that she was "Strongly NDI [No Deception Indicated]," while Weir's indicated that deception was "strongly indicated.... Instead we examine the component of the test `contextually,' making sure to be responsive to `contemporary standards of society.'" Horton, 70 F...

...Praprotnik. Pp. 736-738. JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY, concluded in Part II that the text and legislative history of...both a Thirteenth and a Fourteenth Amendment statute. Pp. 713-722. (b) The text and legislative history of the 1871 Act, which was expressly enacted to enforce the...offense at issue — governs the general — here, § 1981 — and that, where the text permits, statutes dealing with similar subjects should be interpreted harmoniously. Pp. 738-739...

...-part test is used to determine "prevailing party" status under the "catalyst" test. The first determination is whether, "as a matter of.... At least one circuit has interpreted Farrar as having eliminated the "catalyst" test as a basis for establishing "prevailing party...practices. To survive the first prong of the "catalyst" test, Payne must show a causal link between his request for the due process hearing and the allegedly beneficial outcome. See Parents of Student W v...

...suggests that Riser's prevailing party test has not spawned a large amount of satellite litigation. In the decade since Riser was decided, only a bare handful of cases have focused on...sought dismissal only after the defendants presented uncontested affidavits establishing that the plaintiff had no viable First Amendment claim). In applying the test, courts...' and the Eppses' intentions from the text of their contract. The Court's primary concern is whether recovery of attorney fees from a plaintiff who nonsuits is good policy, and it presumes the Fowlers...

...United States v. Henry, 447 U.S. 264 — which applied the "deliberately elicited" test of Massiah v...final. Sanders v. United States derived its "ends of justice" test directly from language of the then-applicable statute and left for another day the task of defining the...), the court reasoned that the "deliberately elicited" test of Massiah requires something more than incriminating statements uttered in the absence of counsel. On the facts found by the state...

..., 1994, the Commonwealth offered co-defendant, Mark Marinelli a plea to third degree murder on the condition that he pass a polygraph test. He did not pass and the offer was withdrawn. On April 20, 1995...the instant case the Commonwealth withdrew its original plea offer to co-defendant Mark Marinelli based on his failure of a polygraph test, only later to have him testify to the same information they...untrustworthy because he failed to pass a polygraph test, passage of which was a condition of Mark's entry of a guilty plea to third degree murder. Appellant asserts that when Mark did not pass this...

.... See Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001). Under this test, the proper similarly situated compa...maintain claims for malicious prosecution [and], therefore, voluntarily withdraws these claims." (See Dkt. 60-19 at 14.) The Court presumes that the heading, as opposed to the text, is correct and...

...). Under this test, the proper similarly situated comparator in this case would be an off-duty police officer not in Plaintiff's protected class who was accused of the same misconduct, i.e...presumes that the heading, as opposed to the text, is correct and that Plaintiff intended to withdraw his Monell claims against the City for negligent hiring, supervision and retention. Furthermore...

.... Raymond Finn examined Jones for competency, intelligence, suggestibility, and psychopathy, and also administered the Rorschach Inkblot Test and the Violence Risk Assessment Test. (2 CR 236-37; 35 RR 113...the eve of trial, terminated prematurely, and underfunded. The amount of time or money spent on an investigation is not a litmus test for deficient performance. Moreover..., hire their own competency expert. Dr. Finn first evaluated Jones four months before trial. He administered the Georgia Court Competency Test and, like Dr. Turbeville before him, found Jones competent to...

...trial, defense expert Dr. Raymond Finn examined Jones for competency, intelligence, suggestibility, and psychopathy, and also administered the Rorschach Inkblot Test and the Violence Risk Assessment...Test. (2 CR 236-37; 35 RR 113-17.) On December 21, 2000, the prosecutor notified defense counsel that Jones had complained of hearing voices in his head. (2 CR 261.) On January 19...investigation was done on the eve of trial, terminated prematurely, and underfunded. The amount of time or money spent on an investigation is not a litmus test for deficient...

.... At this juncture, we must articulate the test as to when a retrospective hearing may be held where the issue of defendant's competency at trial is raised in a PCRA petition..., and apply this test to the matter sub judice. First, the PCRA court must determine whether the defendant's PCRA petition raises a material issue of fact concerning whether he was competent at...will not disturb a PCRA court's ruling asto whether a retrospective hearing should be held absent an abuse of discretion. In applying this test to the matter sub judice...

...packaging includes an image and text of multiple wrenches being replaced by a single wrench and a "Try Me" sign ad. (Id. ¶ 41.) LOGGERHEAD, BIONIC WRENCH, a turtle-head logo and "A Gripping...Tobacco is not controlling because it only concerns word trademarks. On the contrary, Top Tobacco analyzed the appearance of both tobacco cans in deciding that the factor test is inapplicable. The...

...-407. The best test of whether prejudicial pretrial publicity prevented obtaining a fair and impartial jury is a careful and searching voir dire. Treesh, supra at 463-64. Also, a trial court...

...). Turning to Section 2254(d)(2), as well as the related Section 2254(e), the test for the "unreasonable determination of facts" clause is whether the petitioner ...of the rights guaranteed under the Compulsory Process Clause, the Supreme Court has not yet established a single, clear test for determining the constitutionality of actions that might deny or...); Hicks v. Wainwright, 633 F.2d 1146 (5th Cir. 1981). Although the Due Process Clause has also not yielded a mechanical test for evaluating these claims, the appellate courts tend...

...U.S.C. § 2254(f). Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds...a criminal prosecution the right to assistance of counsel for his defense. The applicable federal precedent for ineffective assistance claims is the well-settled two-prong test established by the...) (setting out the Strickland test); Williams, 529 U.S. at 390-91 (same). The first prong of the Strickland test requires a...

.... Pennsylvania applies the same test for ineffective assistance of counsel as the federal courts...)). Turning to § 2254(d)(2), the test for the “unreasonable determination of facts” clause is whether the petitioner has demonstrated by “clear and convincing evidence,” § 2254(e)(1), that...claim for ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668...

..., 173 L.Ed.2d 701 (2009). Furthermore, a majority of the Court finds that Boyd's claim is governed by the test for ineffective assistance of counsel enunciated in...identified the Strickland test as the rule of decision, it erred in reviewing Boyd's claim de novo. As explained in Chief Judge Scirica's opinion, because the state courts adjudicated Boyd's claim on...prejudice prong of the Strickland test, it should hold its own hearing (subject again to § 2254(e)(2)) if it declines to accept the Magistrate Judge's finding...

.... Turning to Section 2254(d)(2), as well as the related Section 2254(e), the test for the "unreasonable determination of facts" clause is whether the petitioner has.... Pennsylvania applies the same test for ineffective assistance of counsel as the federal courts...

...of the two part test, i.e., whether the proffered evidence is new, provides that "evidence is new only if it was not available at trial and could not have been discovered earlier through the...28 U.S.C. § 2254(e)(1)). Turning to § 2254(d)(2), the test for the "unreasonable determination of facts" clause is whether the petitioner has demonstrated by "clear.... The two-prong test for ineffective assistance of counsel as established by Strickland "qualifies as 'clearly established Federal law'" for purposes of AE...

...Stroman followed through with his threat. On December 16, 2004, Bermudez was asked to submit to a “Random Dole Test.” ( Id. ¶ 57.) Bermudez does not explain the purpose for the Random Dole Test or...who must submit to the test. On July 20, 2005, Stroman called Bermudez's cellular telephone number while intoxicated to express his feelings towards her. ( Id. ¶ 64...Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir.2001)). “This test has objective and subjective elements: the misconduct shown must be ‘severe or pervasive enough to create...

...."). See supra note 37 and accompanying text. Second, the Commonwealth has the ability to criminally.... See supra note 45 and accompanying text.-------- ...

...court reasoned: (1) To provide or apply an appropriate standard or test of prejudice could be "difficult"; (2) An inquiry at a hearing under a standard which requires a showing of prejudice would itself...

...."). See supra note 37 and accompanying text. Second, the Commonwealth has the ability to criminally penalize county clerk.... See supra note 45 and accompanying text. -------- IV. CO...

...). Carter errs in this supposition. The Appellate Division's analysis of the sufficiency of the evidence was in the context of the weight of the evidence test,...constitutional sufficiency of the evidence test. Murden v. Artuz, 497...reasonable doubt." Unlike the Appellate Division in applying the New York weight of the evidence test, this Court is precluded from either re...

...Allam's motion to suppress the statements made by K.S. Id. at 217-218. The court also denied Allam's motion to preclude DNA evidence finding that Allam consented to the DNA test. Id. at 221...finding that Allam had consented to the DNA test was supported by the record. Id. at 137. On August 7, 2012, the Pennsylvania Supreme Court denied Allam's petition for...-case determinations.'" Id. (emphasis in original). Under the "unreasonable determination of the facts" provision of § 2254(d)(2), the test "is whether the petitioner has...

...amendment, the Third Circuit rejected this argument. While it is true that the text of the 1995 PCRA amendments supports these contentions, it is not clear..., the text of the article focused on Mrs. Pursell's view that her son was innocent. Id. Finally, the local media ran a number of stories about how Pursell's glasses were found at the murder scene...cause. The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any...

..., including on campus at McAllen High School. He also exchanged text messages with Gonzalez...

.... 2012)) (citing 28 U.S.C. § 2254(e)(1)). Turning to Section 2254(d)(2), the test for the "unreasonable determination of facts" clause is...-03). Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error...by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance claim, a...

...). In some cases, the test for municipal liability has been articulated differently...

...Officers nor Director Godwin joined in the City's Motion for Judgment on the Pleadings. The Defendants' pending Motions for Summary Judgment test the trial-worthiness of Jones' suit...

...the text, courts in this Circuit have continued to abide by the Supreme Court's analysis of § 1981 as pronounced in Jett, see, e.g., Roddini, 2003 WL 435981, at *5 n. 7 (refusing...establishes that Mr. Togbah failed the first portion of the examination, the word-processing test, while the other three College Assistants, including Ms. Guitierrez, passed the same portion and were...) (holding that an isolated act will not suffice to establish actionable harassment unless it is very severe)). The test also has both objective and subjective elements, with the ultimate question being...

...social media websites such as Facebook.” ( Id. ¶ 13.) In that year, Kyra allegedly received a text message from a white classmate that contained an animation of the Klansmen of the Ku Klux Klan...allegedly “was made aware of the situation involving the text ... no action was taken against the white classmate.” ( Id.) Kyra was allegedly subjected to racial slurs and comments from 2008 through...teammates allegedly made these comments in Defendant Manley's presence, but Defendant Manley did not react. ( Id.) On April 17, 2012, Kyra allegedly received a text message from a...

...and 1983, the court applies the three-part test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973...

...claim is that his trial counsel was ineffective for failing to life — qualify the jury — to determine that each juror could vote for a life sentence. Strickland sets the relevant test: Thomas...

..., 403 (3d Cir.2012)) (citing 28 U.S.C. § 2254(e)(1)). Turning to Section 2254(d)(2), the test for the “unreasonable determination of...). Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error: [I]n § 2254 proceedings a...was effective, we will set forth the applicable standard here. A claim for ineffective assistance of counsel is governed by the two-pronged test set forth in...

.... However, because Mincy fails to meet the causation prong of the retaliation test, his claim fails. He has produced absolutely no evidence that his litigation and grievance activiti...

..., 166 (E.D.N.Y. 2014). In accord with the rules set forth above, the Court does not, at the pleadings stage, apply the McDonnell Douglas burden shifting test. Instead, as noted, the Court...

...would fail the McDonnell Douglas test for discrimination, and therefore would not survive a motion for summary judgment. Even assuming that Tillman could establish a prima facie case of...filed a charge of discrimination. 2. Tillman 2013 Claim Fails the McDonnell Douglas Test Proceeding to Tillman's Title VII claim...

...City claims that plaintiff's job performance was not satisfactory and that plaintiff violated work rules. To satisfy the second element of the test, plaintiff need only demonstrate that she possessed...could meet the public concern requirement, he would be unable to satisfy the causation prong of the test for the same reasons that he cannot make out a [Title VII] retaliation claim). As previously...proper under the circumstances and any test of objective reasonability. Specifically, defendants contend that, "considering the safety sensitive nature of plaintiff's job with the City, there can be...

...Section 2254(e), the test for the "unreasonable determination of facts" clause is whether the petitioner has demonstrated by "clear and convincing evidence" that the state court's determination of...

...termination, that claim would fail the McDonnell Douglas test for discrimination, and therefore would not survive a motion for summary judgment. Even assuming that Tillman could establish a prima...even if he had timely filed a charge of discrimination. 2. Tillman 2013 Claim Fails the McDonnell Douglas Test Proceeding to Tillman's Title VII...

...is stricken only if "defendant's inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness's direct testimony...

...tests in summer 2012, then rented a truck, took and passed the road test, and obtained tanker and passenger endorsements. (Dkt. No. 51-31, ¶ 3; Dkt. No. 51-16, at 19-20...Univ., 584 F.3d 487, 491-92 (2d Cir. 2009)). The fourth factor of this test may be satisfied either by "(1) direct evidence of discriminatory...

...Douglas test for discrimination, and therefore would not survive a motion for summary judgment. Even assuming that Tillman could establish a prima facie case of discrimination, Luray conclusively.... 2. Tillman 2013 Claim Fails the McDonnell Douglas Test Proceeding to Tillman's Title VII claim related to his 2013 employment...

...] unequivocally in statutory text and will not be implied. Id. (citing Lane v. Pena, 518 U.S. 187, 192...

...). Standard of Review "A motion to dismiss for failure to state a claim is a test of the plaintiff's cause of action as stated in...

...transfer her. (FFC Tr. 42:2–20, 116:11–117:12.) See infra note 51 for the complete text of the May 7 transfer request...Retaliation Retaliation claims under Title VII are evaluated under the McDonnell Douglas three-step burden-shifting test...

...in a complaint survive a Rule 12(b)(6) motion to dismiss. Under the test set forth in Santiago, the district court must initially "take note of the elements a plaintiff must plead to state a...

...McDonnell Douglas burden-shifting test. Report at 15; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03...) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”). Plaintiff argues that she has offered direct evidence of Taliey's..., 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). “However, ‘[t]he McDonnell Douglas test is...

...satisfy this test, an inmate must allege a serious medical need and a prison official's deliberate indifference to that need. See Farmer v...

...work to ensure data integrity and federal compliance. (Homer-Gray Dep. at 7:16-8:16; Monochen Dep. at 14:21-15:3.) C. Suspended Solids Test As an...materials in wastewater samples so as to properly calibrate water treatment systems. To conduct a suspended solids test, chemists separated the solid substances from the wastewater by...December of 2010, shortly after Negatu became the supervisor of the Laboratory Department at Newton Creek, she instructed Pinede that certain results from a suspended solids test needed to be repeated...

...exhibits and will consider the testimony of Bonnie Brown in Plaintiff's administrative hearing (see Brown Hr'g Test. (Glass Decl. Ex. 26 (Docket # 113-1)). II...Henderson. (Lent Hr'g Test. (Glass Decl. Ex. 3 (Docket Entry # 95)) at 98:18-99:21.) Plaintiff in turn made a complaint to the DOE's Office of...discrimination—a Title VII plaintiff must satisfy a three-part burden-shifting test. See McDonnell Douglas Corp. v. Green, 411 U.S...

...analyzed under a modified version of the McDonnell Douglas test. First, the plaintiff must establish a prima facie case of retaliation by...

.... App. Div. 3d Dep't 1994). The fourth prong of this test may be satisfied either by "(1) direct evidence of discriminatory intent, or (2) a showing by the Plaintiff that [s]he was subjected to disparate...of law."). 3. Circumstances Giving Rise to Inference of Discrimination As stated above, this prong of the prima facie test can be satisfied either by.... Century 21 Dep't Stores, 975 F. Supp. 2d 244, 266 (E.D.N.Y. 2013). The fourth element of the test "may be established by evidence that the...

...reasons, but were a pretext for discrimination." Id. at 143, 120 S.Ct. 2097 (internal quotations omitted). "The test for summary judgment is...

...confession, "the test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's...objective standard of reasonableness and that the deficiency prejudiced the defense. 466 U.S. at 687-88. "The test has nothing to do with what the...best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense...

..."cannot be [] a mathematically precise test" and that all of the circumstances must be considered, including "the frequency of the discriminatory conduct; its severity; whether it is physically...

...). As discussed in the text infra, courts in certain other ADA cases have declined to employ this burden-shifting test. However, as addressed...a Breathalyzer test. (Def's 56.1 ¶ 403-04; Eichenholtz Decl. Ex. 134.) Ultimately, Herlihy was suspended from the NYPD, but not criminally prosecuted. (Def's 56.1 ¶¶ 406-08...intoxicant, improper operation of an NYPD motor vehicle, being unfit for duty, refusing to submit to a breath test, and failure to obey lawful orders to comply with the CSU's directives. (Id. ¶¶ 423...

.... Good Samaritan Hosp., 360 F.Supp.2d 552, 562 (S.D.N.Y.2005) and collecting cases). The Second Circuit has also described the prima facie test as “demanding only that the protected...this test is ordinarily a question of fact for the jury, Feingold v. New York, 366 F.3d 138, 154 (2d Cir.2004), though this rule is “not.... Although Defendants point to many mitigating factors to cast doubt on whether Plaintiff and Dr. Calvi are “similarly situated,” under the Graham test, the Second Circuit...

...that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment"). The Second Circuit has explained that "this test has objective...

...the text of the statute, the SCAN file would appear to fit comfortably within the confines of the FCRA's definition of a consumer report. The driver's license and checking account numbers contained...adopt Defendants' contention that the SCAN file is not a consumer report because it relies upon an interpretation of only half the relevant text. Additionally, we find no textual...in connection with a business transaction that is initiated by the consumer." 15 U.S.C § 1681b(a)(3)(F)(I). We see nothing in the text to suggest that...

.... (Id. Ex. 123). When he returned to the precinct, Sergeant Tobin suspected that Comparator Four had consumed alcohol. (Id.). Comparator Four eventually submitted to a field breath test, which...causation test" when compared with the "but-for" causation standard). Although it is not clear whether the "but-for" causation standard applies to Plaintiff's retaliation claim under the NYHRL, because...

...hostile, the test is whether ‘the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse...

...her testimony that when plaintiff was tied with Finnegan for the highest test score in 2003, Messina said, "if that c*** gets promoted, I will retire that same day," to which Napoli responded, "don't...

...WL 1399415, at *2 (E.D.N.Y. Apr. 10, 2014) (internal quotation marks omitted). With regard to the fourth prong of this test, the...Court does not apply the McDonnell Douglas burden shifting test to analyze the evidentiary support for the discrimination claims. See Gonzalez v. Carestream...

...v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). The test to determine whether a plaintiff was the victim of a hostile work environment...

...particularized, several New Jersey District Courts," including this Court in considering Defendants' earlier motion to dismiss, "have applied a four-factor test that focuses on the likelihood of...weak with regard to past patronage (and not particularly strong on their showing of definitive future plans to visit). However, "New Jersey District Courts only intend the factor test to serve as a...together, the Court finds Plaintiffs have made a sufficient showing on the four-factor test...

...Antonio, Tex., 40 F.3d 698, 714-15 (5th Cir. 1994). If an equal protection claim does not involve a suspect class or a fundamental right, courts review state action using a rational basis test...

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