Railroad whistleblower will get his retaliation trial

The Court of Appeals has reinstated a whistleblower retaliation lawsuit filed by a railroad employee who claims he suffered the consequences after he opposed their efforts to falsify railroad safety logs. This ruling clarifies the standards guiding such cases under the Federal Railroad Safety Act (FRSA), which provides a more plaintiff-friendly burden of proof.

The case is Ziparo v. CSX Transportation, Inc., issued on November 25. This case last reached the Court of Appeals in 2023, when it held that plaintiff had engaged in protected activity in objecting that the work-order falsification requests were creating an unsafe work environment by placing too much stress on the plaintiff who was therefore unable to properly perform his duties, thus further imperiling railroad safety. On remand, the district court again granted summary judgment for the defendants, concluding that plaintiff's other acts were not protected under the statute and he could not prove a causal connection between his protected activity and the termination of his employment.

The record shows that plaintiff's supervisors stood to gain financially if he falsified the safety records: they would earn higher bonuses. But railroad safety is nothing to play games with. This pressure caused plaintiff to lose focus, and after plaintiff complained to his supervisors about this, they selectively wrote him up for discipline, micromanaged his job performance, threatened to fire him and, after plaintiff reported all of this to the company's ethics hotline, they fired him after he misaligned a train switch, which could have caused a derailment, even though only 6 of the 17 employees who had previously committed similar misconduct were not fired. 

Wow have a lot of legal issues here. First. the Court of Appeals (Sack, Nardini and Perez) holds that, under the Supreme Court's ruling in Murray v. UBS Securities, LLC, 601 U.S. 23 (2024), which involved the Sarbanes-Oxley Act (SOX), the comparable FRSA only requires the plaintiff to show the protected activity was merely a contributing factor to the adverse employment, unlike other civil rights statutes, which carry a less plaintiff-friendly but-for causation model. If the plaintiff makes out that prima facie case, to prevail, the employer must prove by clear and convincing evidence that it would have made the same decision even without the whistleblowing activity. Again, this contrasts with Title VII, where the employer need only articulate a neutral reason for the termination and the plaintiff must prove that reason was a pretext for retaliation. Under the clear and convincing evidence test, the employer must show "the truth of its factual contentions are highly probable." You just don't see language like this in other employment laws, owing to the importance Congress placed on the rights of railroad whistleblowers whose speech may be matters of life and death.

This analysis leads the Second Circuit to overrule the contrary Tompkins v. Metro-North Commuter Railroad Co., 983 F.3d 74 (2d Cir. 2020), decided prior to the Supreme Court's ruling in Murray which said, contrary to Tompkins, that the plaintiff need not prove retaliatory intent under SOX and, in turn, the FRSA. And, while Tompkins held that the retaliation plaintiff most prove more than a temporal connection between the protected activity and the adverse action, since Murray does not require the plaintiff to prove retaliatory animus or motive, the temporal proximity test in Tompkins is no longer good law, and the plaintiff need only show temporal proximity without the heightened burden of proof commanded by Tomkins. Still, the temporal proximity must be close enough to permit an inference of retaliation, and the Court of Appeals approvingly cites employment discrimination cases holding that up to 5 months may be enough. As the Court of Appeals sums up:

An FRSA plaintiff can therefore withstand summary judgment on causation so long as they proffer sufficient evidence—direct or circumstantial, including evidence of temporal proximity—from which a reasonable jury could infer that the plaintiff’s protected activity contributed, in any way, to the challenged adverse action.

All of this helps plaintiff win the appeal, reversing summary judgment and remanding the case for trial. Here is what the Court of Appeals did:

1. Plaintiff's formal and informal complaints were protected under the statute. So long as plaintiff reasonably believed the demands imposed on him by supervisors were creating an unsafe working environment, causing him to become stressed and distracted and unable to focus on his safety-related duties, he could not suffer retaliation for his complaints about this kind of supervisory abuse.

2. A retaliatory hostile work environment is actionable under the statute. The statute prohibits "discharging, demoting, suspending, reprimanding, or in any other way discriminating against an employee" for engaging in protected activity. That language necessarily prohibits a retaliatory hostile work environment. While Title VII imposes a high burden on plaintiffs to prove a hostile work environment ("severe or pervasive"), the Title VII retaliation cases, including Burlington Northern v. White, 548 U.S. 53 (2006), which prohibits any retaliation that would dissuade a reasonable employee from speaking out, allows plaintiffs in these cases to merely show that any form of retaliatory harassment that would dissuade the plaintiff is actionable, such as increased scrutiny, selective discipline and screaming at the plaintiff on a daily basis. 

3. The jury may find that the whistleblowing was a contributing factor (even if only played a "small role") in plaintiff's discipline, including termination, due to tight temporal proximity between the two events, the supervisors' admissions that they exhibited hostility or antagonism toward him, particularly after he blew the whistle. The court writes, "had Ziparo not repeatedly made unheeded safety complaints, perhaps his protected activity would not have created escalating 'tension and animosity' that culminated in" his supervisors' threats to fire him. 

4. The jury may find that CSX cannot prove its affirmative defense that it would have fired the plaintiff even without the whistleblowing. While defendant further argued it would have fired plaintiff in any event because he screwed up a track switch and might have caused a derailment, under the clear and convincing evidence framework, we don't ask what management could have done in isolation but what it would have done without the whistleblowing. Since defendant only fired 6 of the 17 employees who engaged similar misconduct, the jury may find it was "highly probable or reasonably certain" that CSX would not have fired plaintiff without the whistleblowing. "In other words, CSX usually retains employees who erred as Ziparo did."

Murder conviction sustained despite claim that jurors made racist remarks during trial

The New York Court of Appeals has sustained murder verdict, rejecting the defendant's arguments that a racially-biased jury tainted the process. 

The case is State v. Wiggins, issued on November 26. The defendant was charged with murder in Buffalo. Witnesses said the shooter wore a cream-colored or beige shirt with a certain pattern, and white pants. Surveillance video showed three people firing weapons but it was impossible to make out their faces. Another surveillance video showed the defendant about 12 hours prior to the shooting wearing the same clothing. An expert linked the gun that fired the fatal shot to the person wearing the white pants and light-colored shirt in the video. This was a true circumstantial evidence case.

During trial, a juror told the judge that someone on the jury made a racist statement, that all Black people look the same at night. The judge and trial counsel then interviewed the juror who wrote the note (juror no. 5) and the juror who allegedly made the racist comment (juror no. 10). In these interviews, juror no. 5 said six jurors in total made racist statements in deliberations but that they had "changed their mind" a day later and had apologized for their comments after juror no. 5 had confronted them. After juror no. 10 denied making the statement.The trial court denied defendant's motion for a mistrial, and the Appellate Division agreed.

Over a dissent from Judge Rivera, the Court of Appeals, after noting that mistrials are warranted when the defendant is judged by racially-biased jury, holds that the trial court in this case handled this issue conscientiously and satisfied itself that the jury could be fair and impartial. The Court writes:

 As the Appellate Division noted, the trial judge "was effectively tasked with determining whether the answers elicited [from the jurors] provided evidence of racial bias potentially affecting jury deliberations or instead supported the conclusion that, following an initial rushed session, there was a frank discussion among the jurors about racial bias (and the appearance thereof) that prompted a closer look at the evidence." The mere fact that race entered the jury's deliberations does not establish that racial bias infected their verdict. Jurors discussing identification evidence—particularly the difficulty of identifying individuals in nighttime, black and white video footage—may necessarily touch upon physical characteristics including race without harboring or expressing racial animus. Here, the record indicates that the discussion at issue arose in the specific context of evaluating the crime scene surveillance video and whether the grainy nighttime footage could support any identification beyond linking the shooter's distinctive clothing to defendant.

Here, the judge was aware of the conduct of the jurors throughout the proceedings, observed the demeanor of the jurors as they were questioned on the issue of racial bias, evaluated their responses, and reasonably concluded on this record that what Juror 5 perceived as racial bias was in fact a discussion about the identification evidence, some of which, as the court noted in its post-trial decision denying the motion to set aside the verdict, may have been misinterpreted. As to the other unidentified jurors allegedly harboring some form of racial bias, defense counsel declined to request that the court question them individually (and, indeed, argued that the court should not do so), and therefore "the only asserted error preserved for appellate review was the denial of the motion for a mistrial" Our role is not to substitute our judgment as to the appropriate remedy for that of the trial judge.

Second Amendment does not prohibit serial number obliteration prosecution

When the Supreme Court in 2008 ruled that the Second Amendment recognizes a personal right of gun ownership, it not only opened the door to lawsuits challenging gun-control regulations. We've seen that share of cases reach the Second Circuit. This case, however, is a criminal manner in which the defendant was charged with a gun-related offense. He was found guilty but now challenges the judgment under the Second Amendment.

The case is United States v, Gomez, issued on November 17. Defendant was charged with possessing a firearm with an obliterated serial number. He argues now that the Supreme Court's recent Second Amendment ruling, New York State Rifle & Pistol Assn v. Bruen, 597 U.S. 1 (2022), many gun regulations are subject to review because the Supreme Court will strike them down unless similar laws were on the books when the Bill of Rights were adopted in 1791. Since the constitutional framers did not anticipate every problem that might have arisen over 200 years later, many gun laws will be stricken under Bruen.

But not this one. The statute here makes it illegal to remove or tamper with the serial number on a gun that may enter interstate commerce. Was there anything like this on the books when the Constitution was drafted all those years ago? The Court of Appeals (Kearse, Jacobs and Lohier) notes that individual self defense is the central right promoted under the Second Amendment. The issue, then, is whether this statute infringes on the right of self defense. It does not. Protecting the integrity of the serial number "merely regulates a nonfunctional feature: the serial number." The defendant was able to defend himself without removing or altering the serial number.

Free speech retaliation claim fails as speculative

The plaintiff sued his employer, the Onondaga County Sheriff's Department, under the First Amendment, claiming he was disciplined for speaking out: that another officer was having a sexual relationship with a confidential informant. He also claimed he was disciplined for acting on an assault report that another officer had ignored, But the courts say he has no case.

The case is Murphy v. Onondaga County, a summary order issued on November 18. Even if plaintiff spoke out on matters of public concern (a necessary prerequisite to bringing a speech retaliation claim), he cannot prove causation, that is, he cannot link his speech with the discipline.

First, his appellate brief does not challenge the trial court's causation analysis. That is waiver. But even if he did not waive this argument, summary judgment was proper because, as the district court stated, "“[a] span of over two years between [this supposedly protected activity and adverse action] is far too attenuated to create a jury question on causation.” 

The Court of Appeals has been all over the place on how long is too long to draw an inference of causation in retaliation cases. Unless you have direct evidence (such as the decisionmaker's admission somewhere in the record that he took action against the plaintiff because of his protected activity), these cases are usually won and lost on circumstantial evidence. A close-in-time adverse action following the protected speech may support a finding of causation, but courts review these arguments on a case-by-case basis. Sometimes three months is too long, and sometimes eight months is not too long. But two years is always too long in these cases. We may hold grudges for that long in real life, but a two year gap in the courtroom is speculative, and judges do not want to hold people, especially public officials, liable based on speculation. There is no bright line in these cases, but two years will exceed any line that the Court of Appeals (Parker, Carney and Livingston) is willing to draw.
  

Circuit Court rejects proportionality in sizing up attorneys' fees under Vermont law

This case is a lesson for attorneys, but also for clients. This whistleblower claim in Vermont went to trial, and the jury awarded the plaintiff over $3.2 million in damages. The court ordered a new trial, and a second jury awarded only $55,000 in damages. That's the lesson for clients: you never know with a jury. The lesson for attorneys is how to award attorneys' fees when they greatly outweigh the damages.

The case is Cole v. Foxmar, Inc., issued on November 12. Vermont has its own occupational safety and health act, and it allows prevailing parties to recover their attorneys' fees. Since the case went to trial twice, the fees are quite high: plaintiff's lawyer requested over $240,000 in fees and another $18,000 in costs. But the trial court reduced the overall award by 30 percent because such downward adjustment was appropriate "based on Cole's overall success." In other words, the judge reduced the fees because they were out of proportion with the damages.

Federal fee-shifting statutes prohibit this kind of downward departure on proportionality grounds. The policy is that many civil rights cases do not yield large damages awards, but we still need to attract good lawyers to bring the cases. So we often see the fees outnumber the damages. Does that policy guide cases brought under Vermont law? That's the question before the Second Circuit (Raggi, Wesley and Perez), which holds that the policy does in fact apply and we can't reduce the attorneys' fees simply because they greatly outweigh the damage award.

While Vermont law permits trial courts to consider the litigation results obtained by the prevailing plaintiff in calculating attorneys' fees, "proportionality -- i.e., the mathematical relationship between a plaintiff's damages award and the plaintiff's attorneys' fees award -- is not a permissible measure of a plaintiff's degree of success under Vermont law." The Second Circuit cites Vermont cases for this proposition. This ruling aligns Vermont law with federal law. The case returns to the trial court to recalculate the attorneys' fees.

Million dollar personal injury verdict is affirmed on appeal

This personal injury case against BMW went to trial in federal court. The plaintiff lost part of his thumb because the car automatically shuts the door under its "sort close" feature when the door is six millimeters from being closed. The lawsuit was filed under the General Business Law, which prohibits consumer fraud, and general personal injury principles. The Court of Appeals upholds the verdict.

The case is Boateng v. BMW, a summary order issued on November 10. The "soft close" feature is one of those bells and whistles that automobile manufacturers put into the car that only cause more problems later on, and when they stop working you have to pay a fortune to have it fixed. 

BMW argued that plaintiff should not have won the trial because "(1) it is a matter of common sense that fingers and body parts should not be put in the path of closing doors, (2) warnings in the car’s owner’s manual adequately warned of the risk of amputation-like injuries, (3) and even though BMW had received numerous customer reports of injuries from soft close doors, there was no omission of material information because soft close doors are supposedly statistically no more dangerous than normal doors and the number of customer complaints was relatively small." 

The jury was able to reject these defenses, the Court of Appeals (Lynch, Nardini and Menashi) holds, because the evidence shows that soft close doors are designed to exert substantially more force (134.885 to 224.809 pounds) than the amount of force required to fracture a thumb (95 to 100 pounds), and that the doors would stop for certain obstructions—like a steel bar—but not a finger.  The jury was also able to find that the "common sense" argument fails because a reasonable consumer would not know there was any risk of amputation upon accident activation of the soft close doors. And the jury was also able to find that the soft-related warning in the owner's manual, which warned of a "danger of pinching," was not enough to put someone on notice that they might risk amputation. 

The jury awarded plaintiff more than $250,00 in lost wages. That amount is fair, the Court says, in light of plaintiff's salary, the extent of his work week, and losing 56 weeks of work. 

As for pain and suffering, the jury awarded him $800,000 for past pain and suffering, and $850,000 in future pain and suffering. Under New York law, these amounts do not significantly deviate from prior awards in similar cases. The trial court, in reaching the same result, noted there are different kinds of amputation injuries: there is the sharp injury and there is the crush injury, like plaintiffs. And the less said about these injuries, the better. You also don't want to know about the cases summaries in this opinion that the Second Circuit cited in upholding plaintiff's damages awards. Suffice to say, these cases are brutal. Bottom line is that plaintiff's damages award is in line with the crush injury verdicts. 

2d Circuit returns Stormy Daniels/Trump payoff case to SDNY for further review

The Court of Appeals has revived an effort by Donald Trump to remove his New York City criminal case from state court to federal court. Although a jury has already convicted Trump of fraud relating to his $130,000 payout to an adult film star, the federal court will now have to decide how the Supreme Court's recent presidential immunity might impact the conviction.

The case is Trump v. State of New York, issued on November 6. You know this case: it started when Stormy Daniels said she had a one-night stand with Trump many years ago and threatened to publicize the rendezvous prior to the 2016 election. It was believed, at least at that time, that this kind of pre-election revelation might make a difference. Trump's appeal from that conviction is pending in the state appellate courts. But this case, asserting presidential immunity, is another way to attack that conviction.

The case might be suitable for review by a federal court if the evidence at trial touched upon presidential immunity issues. I am sure that paying off Stormy Daniels, by itself, does not qualify as a core presidential function for which the president has complete immunity. There is nothing in the Constitution that speaks to paying hush money to a former lover. But in the immunity decision from July 2024, the Supreme Court also said that even evidence of a president's immunized officials is inadmissible at trial. That means that if the criminal charge does not arise from a core presidential action, i.e., overseeing foreign policy, evidence in support of the criminal charge cannot draw from an official act. 

The Trump legal team argues that the Stormy Daniels conviction incorporated "official acts" evidence: (1) Trump allegedly told his attorney-fixer, Stephen Cohen, that a Federal Election Commission inquiry would be taken care of by the Attorney General, (2) testimony from Trump's Communications Director about private conversations with Trump about Cohen and his activities, and (3) evidence of Trump's official statements in 2018 via Twitter. The jury heard this evidence. Was this evidence enough to upset the criminal conviction? Would the conviction overturned simply because the jury heard this evidence? Nobody knows the answer to these questions.

While the district court in this case rejected Trump's argument that this criminal case should be handled in federal court, the Court of Appeals (Lohier, Carney and Perez) says the district court did not provide a sufficiently comprehensive analysis of this issue. The case thus returns to the Southern District of New York for that analysis. If the trial court again rules against Trump, this case will return to the Second Circuit (unless the state appellate courts throw out the conviction altogether) and if that effort fails, it will proceed to the Supreme Court.

These cases are all taking forever to resolve because we have never had a president who faced criminal charges after leaving office. This unprecedented circumstance has required the state and federal courts, including the Supreme Court, to articulate new legal standards and shoehorn these cases into old legal standards. That process takes time. My guess is it will take a few years for the Stormy Daniels payoff case will not be fully resolved, and if issues like this reach the Supreme Court, how the Justices deal with them is anyone's guess.