Tuesday, October 28, 2014

Facebook pages have to be authenticated for use at trial

Do law students appreciate how importance Evidence class is? Everything a litigator does requires consideration of the rules of evidence. A great case can fall apart if it depends on hearsay. And a great document may be useless if it is not authenticated. That's what this case is about.

The case is United States v. Vayner, decided on October 3. This case alleged that defendant was a master forger and that he concocted records inside the United States for someone in Ukraine to "prove" that he has a daughter; with that fake birth certificate, you can avoid military service. At trial, the prosecution introduced a copy of defendant's Russian Facebook page that corroborated the testimony from other prosecution witnesses that plaintiff was a forgery expert. But the special agent who explained the Facebook page to the jury testified that he had never logged onto the site except to view defendant's page, and he did not know if any identity verification was required to create such a page. The jury found defendant guilty of forgery after the prosecutor cited the Facebook page.

The Federal Rules of Evidence outline the rules for proving that a document is authentic. This case summarizes those rules and provides some examples how to prove that a document is the real McCoy. Under Rule 901, the proponent of the evidence "must produce evidence sufficient to support a finding that the item is what the proponent claims it is." As the Second Circuit (Livingston, Wesley and Lohier) says "proof of authentication may be direct or circumstantial. The simplest (and likely most common) form of authentication is through 'the testimony of a witness with knowledge that a matter is what it is claimed to be." While the contents or distinctive characteristics of a document can sometimes by themselves authenticate a document, that only happens when the document deals with obscure subject matter "so that the contents of the writing were not a matter of common knowledge."

The Facebook page was not admissible because the special agent did not sufficiently authenticate it. While the page had defendant's name and photograph and offers details about his life, "there was no evidence that [defendant] himself had created the page or was responsible for its contents. Had the government introduced, for example, a flyer found on the street that contained [defendant's] Skype address and was purportedly written or authorized by him, the district court surely would have required some evidence that the flyer did, in fact, emanate from [defendant]. Otherwise, how could the information in the flyer be attributed to him? ... The mere fact that a page with [defendant's] name and photograph happened to exist on the Internet at the time of [the special agent's] testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf."

Friday, October 24, 2014

Another look at when discriminatory comments are enough to win the case

Many discrimination cases are won on the basis of circumstantial evidence. Some cases involve direct evidence, which certainly makes life easier for everyone in determining whether the plaintiff should win the case. The question then becomes when these comments will allow you to take the case to a jury.

The case is Wesley-Dickson v. Warwick Valley Central School District, a summary order decided on October 6. Plaintiff was a teacher who was denied tenure. She claimed that the district had engaged in racial discrimination, and in support of that argument, she cited the following evidence:

in September 2007, while she was undergoing chemotherapy and wearing a headscarf, defendant Reinhard told her that when she spoke in a southern accent she sounded “like Aunt Jemima” and as if she were “down on the plantation.” Plaintiff also attributes to defendant Fox a September 2007 remark dismissing a school district diversity conference to be led by African-Americans as “a waste of her time.” Finally, plaintiff asserts that, in May 2006, Superintendent Greenhall recounted that he had been severely assaulted by “six black boys,” but had “showed them.” She further alleges that in response to concerns expressed no later than March 2008 by union representative Mary Jane Hamburger about plaintiff’s negative performance evaluations, Greenhall stated that he was “not afraid to fire black people.” 
The issue of when discriminatory comments are enough to help the plaintiff at trial received extended treatment from the Second Circuit a few years ago, in Henry v. Wyeth Pharmaceuticals, which states:

The district courts in this circuit have developed a standardized approach for applying these concepts to individual cases. In determining whether a remark is probative, they have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).

Are the statements in this case enough to show intentional discrimination? The Court of Appeals (Winter, Raggi and Hall) says no. Reinhard made what looks like a racist statement, but she did not review plaintiff's work, write her performance reviews or influence the decisionmakers who got rid of plaintiff. While Fox was one of plaintiff's reviewing supervisors and her reviews influenced plaintiff's termination, "both the Fox's isolated comment (about a district conference) and its timing (6 months before plaintiff's probationary term was extended and 18 months before she was denied tenure) are too remote and oblique to raise a triable issue of pretext." As for Greenhall's May 2006 comment of a past assault by "black boys," it was too remote in time and oblique in context to support an inference of pretext.. Hamburger's statement, meanwhile, is hearsay, as she was recounting Greenhall's statement and did so in her capacity as plaintiff's union representative and not as an agent of the school district.


Thursday, October 23, 2014

Rehabilitation facility must exhaust administrative requirements before suing in federal court

Litigation can be so exciting that sometimes we can't wait to file the lawsuit and get started on discovery, motion practice and all the other lawsuit-related activities that make life worth living. But sometimes you have to wait to exhaust state law procedures before diving head first into federal court. This case reminds us of how that all works.

The case is Sunrise Detox, LLC v. City of White Plains, decided on October 2. Sunrise Detox was a proposed drug rehabilitation facility in White Plains. In the face of public opposition to the facility, the City Council determined that the neighborhood was not properly zoned for it. The City fathers told the proprietors they could seek a variance or appeal the determination to the Zoning Board of Appeals. Rather than do that, plaintiff filed a federal lawsuit, claiming the adverse determination violated the Americans with Disabilities Act. The district court dismissed the case as unripe, and the Court of Appeals (Jacobs, Sack and Lynch) affirms.

On ripeness grounds, courts have held for years that landowners who challenge zoning determinations in court must obtain a final decision from the municipality. The reason for this is that allowing the municipality to finally rule on the dispute can chrystalize the issues, shed further light on the issues or even put an end to the matter if the landowner prevails before final municipal authority. The Court of Appeals has extended this rule to cases challenging local decisions under the First Amendment speech and religiom clauses and the Religious Land Use and Institutionalized Persons Act. The Court now extends the ripeness requirement to ADA claims.

Plaintiff tries to get around the ripeness rules by arguing that it was the victim of intentional discrimination forbidden by federal law, and that "the injury from such discrimination is experienced as soon as the official acts with a discriminatory motivation." The Court of Appeals says "this argument is not without appeal." But the Court does not decide whether a property owner who claims that a local official vetoed his project for discriminatory reasons can immediately sue in federal court; it declines to rule on that issue because plaintiff does not seek compensatory damages from the official who made that decision. In any event, "only after Sunrise completes the process will it be known whether the allegedly discriminatory decision of the official had any effect at all on Sunrise's application."

The Court offers the following guidelines: 

We think, therefore, that a plaintiff alleging discrimination in the context of a land‐use dispute is subject to the final‐decision requirement unless he can show that he suffered some injury independent of the challenged land‐use decision. Thus, for example, a plaintiff need not await a final decision to challenge a zoning policy that is discriminatory on its face, or the manipulation of a zoning process out of discriminatory animus to avoid a final decision. In those cases, ʺpursuit of a further administrative decision would do nothing to further define [the] injury,ʺ and the ʺclaim should not be subject to the application of the Williamson ripeness test.ʺ
The plaintiff cannot meet that test. Although the commissioner said the properly was not zoned for the facility, "in light of administrative avenues for relief outlined in the zoning ordinance and the commissioner's letter, we conclude that neither of these acts give rise to an injury independent of the city's ultimate land-use decision." Since Sunrise cannot prove that the Court can look to a final and definitive position from the City over its application, this case is not ripe for judicial review. 

Wednesday, October 22, 2014

County employee's speech before Legislature not protected by First Amendment

In 1991, the Second Circuit held that a high-ranking New York City employee could not be fired in retaliation for giving subpoenaed testimony before a State Assembly Committee about the validity of civil service tests for police officers. In that case, Piesco v. City of New York, the Court said that you cannot fire someone over this because the testimony was on a matter of public concern and the Legislature cannot function without input from informed members of the public. Is Piesco still good law? Maybe not.

The case is Williams v. County of Nassau, a summary order decided on October 21. (I represented the plaintiff on appeal). Piesco provides an extensive discussion about the value of "public concern" speech in a legislative forum that requires candid feedback from the public. But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that employees who speak pursuant to their official job duties have no First Amendment right against retaliation because they do not engage in citizen speech but unprotected employee speech that can get you fired in an at-will state like New York (and most of the rest of the country).

How do we square Garcetti with Piesco? The plaintiff in this case was the Executive Director of the Nassau County Civil Service Commission. He had heard that the County Legislature had received inaccurate information about a civil service matter. So he showed up at a legislative session to set the record straight. Plaintiff was then fired. He argues that he was fired in retaliation for publicly embarrassing the County Executive. Citing Piesco, Williams argued that his termination violated the First Amendment because, like Piesco, he addressed a public body on a matter of public concern. The Court of Appeals (Wesley, Straub and Livingston) disagrees.

The Second Circuit does not address the Piesco precedent. It instead applies Garcetti and Weintraub v. Board of Education, the Court's leading Garcetti precedent, which says that employee speech is not protected under the First Amendment if it is "part and parcel" of the plaintiff's ability to perform his job. As the Second Circuit sees it, even speech like this before a County Legislature is not citizen speech and is therefore unprotected. The Court reasons:

Because Williams spoke before the Nassau County Legislature not “as a citizen on a matter of public concern,” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), but rather “pursuant to his official duties” as defined by this Court in Weintraub v. Board of Education, 593 F.3d 196, 203 (2d Cir. 2010), we hold that Williams’s speech is not protected by the First Amendment and affirm the district court’s grant of summary judgment.
So here's the question: a public supervisor is asked to provide information to a Town or Village Board or the County Legislature. Or he wants to provide information on his own. He expresses concern about retaliation if he speaks on a controversial matter that derives from his employment. The public interest is served if he addresses the public body. But his employer could legally fire him if he says the wrong thing. What advice do you give him?

Tuesday, October 21, 2014

Circuit lays down the rules on sexual harassment claims under Section 1983

Employment discrimination cases usually proceed under Title VII and other statutes. But you can also sue public employers under 42 U.S.C. sec. 1983, which enforces the Equal Protection Clause, which in turn also prohibits employment discrimination. There are advantages to suing under Section 1983, but there are pitfalls as well. This case highlights the pitfalls.

The case is Raspardo v. Carlone, decided on October 6. This is one of the lengthiest cases I've seen from the Second Circuit in a while, as three plaintiffs are suing a slew of public defendants for sexual harassment. What complicates the case is that under Section 1983, you generally cannot sue the public employer unless Monell liability can attach, i.e., the discrimination was the result of a municipal policy or practice. This means you have to sue individuals under Section 1983, and they can assert qualified immunity from suit if the law was not clearly-established at the time. The other complication is that sexual harassment cases involve a variety of actors, i.e., harassers (who create the hostile environment) and supervisors (whose failure to stop the harassment actually create liability under Title VII).  Here are the basics when you sue under Section 1983 for sexual harassment:

1. You cannot sue individuals under Section 1983 unless they personally committed sexual harassment that was severe or pervasive. If the hostile work environment was created by several employees, and some of those employees merely contributed to the environment but their harassment was sporadic and was not enough to independently create a hostile work environment, then that employee cannot be sued personally under Section 1983. The Court of Appeals (Droney, Winter and Lynch) says, "our prior cases have established only that when a plaintiff alleges that multiple individual defendants have engaged in uncoordinated and unplanned acts of harassment, each defendant is only liable under Section 1983 when his own actions are independently sufficient to create a hostile work environment." This means that, for qualified immunity purposes, "we therefore cannot say that it is clearly established law that an individual defendant has violated a plaintiff's equal protection rights if he has not personally behaved in such a way as to create an atmosphere of severe or pervasive harassment."

2. In sexual harassment cases under Section 1983, supervisors can be liable for the harassment if they were grossly negligent in supervising the subordinates who committed the harassment. "The standard of gross negligence is satisfied where the plaintiff establishes that the defendant-supervisor was aware of a subordinate's prior substantial misconduct but failed to take appropriate action to prevent future similar misconduct before plaintiff was eventually injured." The Court adds, "A supervisor is not grossly negligent, however, where the plaintiff fails to demonstrate that the supervisor knew or should have known of a problematic pattern of employee actions where the supervisor took adequate remedial steps immediately upon learning of the challenged conduct."The standards for supervisor harassment under Section 1983 (gross negligence) are more difficult for plaintiffs to satisfy than under Title VII, where you need only show that management was negligent in handling the employee's sexual harassment allegations.

Since several plaintiffs are accusing several defendants of harassment, the Second Circuit's decision is quite lengthy, nearly 100 pages. Many of the defendants are let off the hook because the harassment is not severe or pervasive enough or because the bad behavior was not based on gender. The following excerpt, however, shows how one defendant did violate clearly-established sexual harassment law under Section 1983:

Raspardo cites four principal incidents to support her hostile work environment claim against Carlone. In 2007, Carlone asked Raspardo if she was “planning to go out drinking or have sex with [her] boyfriend,” another officer in the department, told Raspardo that her uniform should be more “form fitting,” and attempted to massage Raspardo’s shoulders. In early 2008, Carlone showed Raspardo a suggestive photograph of a woman wearing tactical gear in a magazine which was focused on the woman’s buttocks and passed the photo around to other male officers who were also present, saying that the woman’s buttocks looked like Raspardo’s.

Raspardo told Carlone that his comments were not funny or ignored him and left immediately during these incidents. Raspardo also stated in a sworn statement to the NBPD during its investigation of Carlone that Carlone, her direct supervisor at the time, “made references [of a sexual nature] to [her]  body parts on at least over ten occasions,” particularly concerning her buttocks, often in front of other officers, which made her “feel disrespected, angry, and embarrassed.” She reiterated these allegations in her later deposition testimony and interrogatory answers.

The four principal incidents, including unwanted touching and vulgar comments in front of other officers, when combined with the “over ten” additional comments about Raspardo’s body, all over a period of just one year, would be amply sufficient to permit a jury to find a sexually hostile work environment. The evidence presented by Raspardo, if true, demonstrates that Carlone violated her constitutional right to equal protection through this sexual harassment.




Wednesday, October 15, 2014

Second Circuit provides some gloss on religious land-use discrimination claims

Seems like every religious discrimination case involving the Religious Land Use and Institutionalized Person Act is overly complex. This case is no different, having taken the Court of Appeals more than a year to decide. The Second Circuit revives a case filed by a Jewish organization in Connecticut that wanted to expand its building.

The case is Chabad Lubavich v. Lichfield Historic District Commission, decided on September 19. Plaintiffs purchased property to serve as its new place of worship. This property is an historic building in what is probably a quaint New England community. They asked Town officials for permission to expand the building to suit their religious needs. Anyone who has sat through planning board meetings knows how complicated the land use process is, and this case was no different. In the end, the Town denied plaintiff's proposed modifications, explaining that they would destroy the residential character of the property's environs. Plaintiffs took their case to court.

Under RLUIPA, the plaintiffs win if planning officials imposed a substantial burden on their religious exercise without a compelling interest. If this sounds like a constitutional standard, it is, or at least, it was, before the Supreme Court got rid of it in 1990. RLUIPA was Congress's way of reviving that test in the land-use context. Here are the holdings:

1. The district court (which dismissed the case before trial) misapplied RLUIPA in stating that plaintiffs cannot win without showing the government imposed arbitrary land regulations or standards. Yes, the plaintiff can show the government acted arbitrarily, but it can also win if the government imposed a land use condition that created a substantial religious burden, and if feasible alternatives existed for the religious plaintiffs to meet their needs. So this claim is sent back to the district court to try again,

2. Plaintiffs also bring an "equal terms" claim arising from the municipal denial. The Second Circuit (Livingston, Walker and Chin) says that for plaintiffs to win this claim, they have to show the government imposed conditions or terms that differed from other comparable nonreligious  applications. Plaintiffs argue that a library in the historical district got a better deal from the town in 1965. But the library is not comparable to plaintiff's proposed modifications of the building. Not only was it 50 years ago, but a different land use commission made the decision in that instance. And the size of plaintiffs' modifications are not comparable to what the library did in 1965. That claim fails.

3. RLUIPA also has a non-discrimination provision, requiring that the plaintiff prove intentional discrimination. Courts use Equal Protection case law in resolving these disputes. Under Supreme Court case law, you can show intent if the government deviated from its usual procedures in denying you the benefit, or if added unforeseeable substantive requirements during the process, or if discriminatory impact was foreseeable, or if there was something unusual or strange about the sequence of events that led to the unhappy result. This is all part of the totality of the circumstances test. This claim is returned to the district court to take another crack at this claim.

Thursday, October 9, 2014

Volunteer ambulance corps is not a state actor under the Constitution

The Constitution does not regulate all behavior. It only regulates government activity. If I tell you to shut up, there is no First Amendment violation. If the Mayor tells you to shut up at a Village Board meeting, you might have a lawsuit. But the lines are not always clear-cut. How do we know when entities are "state actors" or private actors?

The case is Grogan v. Blooming Grove Volunteer Ambulance Corps, decided on September 29. As a Corps volunteer, Grogan was charged with misconduct and released from the organization. She sues for due process violations. She cannot proceed, the Court of Appeals (Hall, Chin and Cabranes) says, because the Corps is not a government entity.

There are two ways to show that an entity is a state actor: (1) if it performs a public function or (2) if government is entwined in the entity's management. Grogan cannot meet either test.

First, an entity performs a public function if the function that the government has traditionally performed, like medical care for prison inmates, animal control, fire protection and holding primary elections. Plaintiff says that ambulance services is also a traditional government function, but the Court of Appeals disagrees. New York law says that municipalities "may" provide for these services, but they are not required to do so. While the government has traditionally provided medical care to wounded soldiers, that does not mean similar services to the general population fall in the same category. And, even if ambulance services were a government function, Grogan still can't win because her lawsuit deals with a personnel matter, not the performance of those ambulance services.

Plaintiff also cannot show state action under the "entwinement" test. If the government is entwined with the entity's management or control, then the Constitution governs that entity's actions. While the ambulance corps is heavily regulated, that is not enough to show state action. Plaintiff "is required to show that the State is so entwined with [the Corps'] management that its personnel decisions are fairly attributable to the State." Since the government does not appoint members of the Corps' governing board or has any say in its personnel decisions, the Corps is not a state actor for purposes of this employment case.