Friday, January 30, 2015

2d Circuit provides some guidance on the Mount Healthy defense

First Amendment retaliation cases brought by public employees who get fired for speaking out have a trap door that we call the Mount Healthy defense, named after a Supreme Court decision from 1977 that says that even if the plaintiff proves he was fired or demoted for speaking out, the employer can still win the case if it proves that it would have fired or demoted the plaintiff for non-retaliatory reasons. This case provides some much-needed guidance on that principle.

The case is Smith v. County of Suffolk, decided on January 14. In many ways, Mount Healthy is a hypothetical question, but one that can break any case. I am not sure how jurors can apply this confusing defense, but at trial, the question is dropped in their lap. In this case, the case never went to the jury because the trial court said the employer satisfied its Mount Healthy defense on paper. The Court of Appeals (Hall, Livingston and Brodie [D.J.]) reverses and remands the case for trial.

The plaintiff was a police officer who got nailed at work for various computer-related offenses, including unauthorized Internet use and some job-related problems. But he was also written up for emailing newspaper reporters about a botched murder case and abuses committed by the Suffolk County DA's office. Since the newspaper emails constitute free speech, we have a mixed motive case. The charges against Smith make reference to the free speech, so the jury can find that he was disciplined in retaliation for speaking on matters of public concern. But what about the other stuff he was written up for, things that were not protected by the First Amendment? That's where Mount Healthy kicks in.

The question is "whether defendants have demonstrated that a reasonable jury would have to find by a preponderance of the evidence that the Department would have investigated, transferred, and suspended Smith absent his citizen-media speech." The Court adds, "the unprotected conduct, standing alone, must justify the adverse actions." In other words, "would the defendant have taken the same adverse action even if the impermissible reason had not existed?"

While defendants "have presented considerable evidence of considerable misconduct that is separate and distinct from the incidents of speech the district court determined were subject to First Amendment protection," the best that defendants can do at this stage of the case is to argue that "irrespective of Smith's expression of his opinion to news media and others, reasonable and adequate grounds supporting charges for misconduct for flagrant disregard of department computer and Internet use existed." That general statement won't cut it on a summary judgment motion. The Court says "the Mount Healthy defense ... demands more than this type of general conclusion."

So here's the bottom line: "defendants asserting a Mount Healthy defense may not rely solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a reasonable link between that misconduct and their specific adverse actions. A general statement that the employer would have taken some adverse action will not suffice." So, the Court says, while a jury can find that Smith would have been disciplined solely for the non-speech related misconduct, "a reasonable jury might just as easily infer that because the Department did not transfer Smith following his similar misconduct in the past, he was transferred because of his protected citizen-media speech, rather than in spite of it as defendants argue." The issue raised here, then, is: "Why did the Department discipline Smith in the manner that it did?" As this raises questions about motive, that question is for the jury.


Tuesday, January 27, 2015

Brutish coaching does not violate the Constitution

The football coach was a brute, that's true. His players brought a federal lawsuit against him. The factual allegations are disturbing, but they do not establish a constitutional violation, so the case is dismissed.

The case is Votta v. Castellani, a summary order decided on January 23. The constitutional theory here is substantive due process, which says the government cannot treat you arbitrarily in a shocking way. This is the hail-Mary way to win a constitutional claim, when no other constitutional theories will work, which is why courts are so reluctant to recognize claims for substantive due process. Two points of interest here.

First, the Second Circuit has held that government officials (like schoolteachers) can violate the Constitution if they infringe on your bodily integrity. In Johnson v. Newburgh Enlarged School District (2001) (a case I briefed), the plaintiff schoolchild had a claim because the gym teacher beat the hell out of him. But in Smith v. Half Hollow Hills School District (2002), the student did not have a claim because the school instructor had merely slapped him in the face full-force, "allegedly causing the student both great physical pain and severe emotional pain for which he underwent psychotherapy."

Johnson and Smith are guideposts for this case. But the Second Circuit (Katzmann, Winter and Marrero [D.J.]) says this case is not even as bad as Smith. "This conduct included handling the players roughly, grabbing their facemasks and shoulder pads, shaking them, and screaming at them in such close proximity
that he spat on them. Such minor infringement, even considered in the aggregate, is certainly insufficient to permit a reasonable jury to determine that it shocked the conscience."

The Court does pause to note that the plaintiffs allege that the coach directed them to brutalize opposing players, i.e, breaking their bones, etc. The Court of Appeals says these allegations may give the opposing players a constitutional claim. But they are not the ones bringing the lawsuit. The Court reasons:

This alleged conduct is repugnant and, if proved at trial, such outrageous misbehavior, by itself or in combination with other offensive actions, could permit a reasonable jury to find that it shocked the conscience and caused serious emotional and physical harms to a player who was the victim of such intentional conduct ordered by the coach. However, none of these plaintiffs was a victim of such conduct. While these plaintiffs allege emotional and psychological injuries, these injuries are stated in such general and conclusory terms as not to permit a plausible inference that they were caused by Ward’s infringing on their fundamental rights.

Friday, January 23, 2015

New York's vaccination law does not violate the Constitution

A subculture in American society does not believe in vaccinating children. That belief runs afoul of New York law, which requires that parents vaccinate their kids before sending them to school. Some parents have challenged that law as unconstitutional. The Court of Appeals upholds the law and dismisses the case.

The case is Phillips v. City of New York, decided on January 7, only two days after it was argued. Plaintiffs raise a variety of constitutional theories. The first draws from substantive due process, rooted in the Fourteenth Amendment. But that argued died in 1905, when the Supreme Court said the state can mandate compulsory vaccinations.

The second theory draws from the Free Exercise Clause, which protects religious freedom. The Supreme Court has never directly addressed that argument, but it hinted at it in 1944, stating that a parent "cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." The Second Circuit (Lynch, Chin and Korman [D.J.]) agrees with the Eighth Circuit that the mandatory vaccination law does not conflict with religious freedom, especially since state law allows for exemptions based on sincere religious beliefs. Under that exemption, "in the event of an outbreak ... of a vaccine-preventable disease in a school," the state "may order the appropriate school officials to exclude from attendance" any non-vaccinated students.

Another theory invokes the Ninth Amendment, everybody's favorite backup Amendment. Let's face it, the Ninth Amendment is vague and no one really know what to do with it. It reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Constitutional historians know that it made its last significant appearance in a Supreme Court case back in 1965, when the Court identified a right to privacy, and Justice Arthur Goldberg invoked the Ninth in concurrence in support of that holding. The Ninth does not provide any independent source of rights, the Second Circuit notes, and it cannot help the plaintiffs here.

Thursday, January 22, 2015

Title VII plaintiff loses retrial on new retaliation standard

This case is a real downer for plaintiffs' lawyers. It tells us that the Supreme Court has the final say, and if you don't like it, lump it.

The case is Cassotto v. Donahoe, a summary order decided on January 14. This is a retaliation case brought under Title VII. Plaintiff said he suffered retaliation after asserting his rights under the antidiscrimination laws. The case went to trial, and plaintiff won. Post trial, the defendant filed a motion to vacate the verdict. When the motion was pending, the Supreme Court issued the Nassar ruling, which altered the legal standard governing Title VII retaliation cases.

Prior to Nassar, the Second Circuit (and other courts) said the plaintiff wins the case if the employer's retaliatory intent was a motivating factor in the termination/demotion. But in Nassar, the Supreme Court said the motivating factor test is wrong. The right test is "but for," as in, but for the employer's retaliatory motive, the plaintiff would not have been terminated. This is a higher burden of proof for the plaintiff to satisfy.

Is there a significant difference between "motivating factor" and "but-for" causation? In a recent case, the Second Circuit said that that "but for" causation does not mean retaliatory intent is the only reason someone was fired. In Kwan v. Aldalex, the court said,

A plaintiff's injury can have multiple "but — for" causes, each one of which may be sufficient to support liability. ... Requiring proof that a prohibited consideration was a "but-for" cause of an adverse action does not equate to a burden to show that such consideration was the "sole" cause.
Good language for plaintiffs. Yet, "but for" causation is still harder for plaintiffs to prove at trial. After the plaintiff in this case won his trial, the district court granted the defendant's motion for a new trial in light of the Nassar ruling. On retrial, under the new legal standard, the plaintiff lost. Plaintiff appealed, challenging the trial court's right to order a new trial. But the Court of Appeals (Lynch, Carney and Koeltl [D.J.]) says the trial court had no choice in light of the intervening ruling in Nassar. The trial courts follow what the Supreme Court says, and so does the Second Circuit. That means no relief for Cassotto, and the case is over.

Tuesday, January 20, 2015

Bridge toll differentials are legal in NYC

Every few years, someone sues the State of New York over the bridge and highway tolls, which sometimes charge motorists different amounts of money depending on where you live. These cases are brought under the U.S. Constitution. The Court of Appeals usually finds that these toll disparities are legal.

The case is Janes v. Triborough Bridge and Tunnel Authority, decided on December 24, a mere two weeks after the case was argued. If you drive over the Triborough Bridge from Staten Island, the Rockaway Peninsula and Broad Channel Island, you pay less than the other suckers who have to throw money out the window (into the toll basket) from other locales. Other bridges also provide for similar resident discounts.

Plaintiffs invoke the constitutional right to travel and the dormant Commerce Clause. The right to travel is an interesting legal theory that does not actually appear in the Constitution; the Supreme Court says it's an implied right. As for the dormant Commerce Clause, that may be the least interesting constitutional doctrine, and let's leave it at that.

Cutting through the complex constitutional doctrines, on the right to travel, the Second Circuit (Wesley, Hall and Cabranes) says that when the toll differentials "amount[] only to a minor restriction on travel, the courts will not carefully scrutinize the government's reasons for them. Under the legal standard, "the permissibility of fees charged for the use of state facilities is evaluated under three prongs, which ask whether the fee (1) is based on some fair approximation of use of the facilities, (2) is not excessive in relation to the benefits conferred, and (3) does not discriminate against interstate commerce.” The toll differentials do not violate this standard. The differentials are not that huge, and the tolls are used to defray the cost of bridges and "the facilities of a large integrated transportation system, the operation of which facilitates interstate travel." And, as a practical matter, no one has been meaningfully dissuaded from traveling interstate because of these tolls.

As the dormant Commerce Clause analysis is similar to the right to travel analysis , the case is dismissed.

Friday, January 16, 2015

Speculative retaliation claim is dismissed

The Court of Appeals can open-minded about Title VII retaliation claims, where plaintiffs argue that they got shafted by management after they asserted their rights under the civil rights laws. Plaintiffs sometimes succeed in reversing summary judgment on appeal, but not every case is a winner. This case loses in the Second Circuit.

The case is Henderson v. Sikorsky Aircraft Corp., a summary order decided on January 7. This case applies the settled legal standard that cases will not go to a jury on the basis of speculation or conjecture or conclusory allegations. Plaintiff says he was denied a pay raise after he was promoted to a supervisory position in retaliation for previously complaining about discrimination.

That plaintiff can articulate a claim does not mean he has a claim. Management testified that the raises are discretionary for new supervisors. Two other supervisors also failed to get raises. And "the company's decision to deny Henderson a raise owed specifically to his poor job performance, including one evaluation ranking Henderson in the bottom ten percent of his peers. Indeed, Sikorksy asserts that Henderson’s disappointing performance discouraged the company from awarding him a supervisory position for several years, and that Henderson was offered the promotion in 2012 only because there were no other qualified applicants to fill an immediate vacancy."

At best, the Second Circuit (Lynch, Chin and Koeltl [D.J.]) says, plaintiff only speculates as to his belief that he was denied the raise because of his race. This will not do in the Court of Appeals (or the trial courts for that matter). While retaliation cases with a logical timeline can be winning cases for plaintiffs, this case is not one of them.

Thursday, January 15, 2015

Police lies can support Section 1983 lawsuit

In 2012, the Supreme Court unanimously said that you cannot sue police officers for committing perjury during Grand Jury proceedings. The Rehberg case may have seemed insignificant three years ago, but nowadays, with increased attention on Grand Juries, my guess is that the public would be alarmed to learn that the police can get away with lying under oath during these proceedings without fear of civil liability.

The case is Coggins v. Buonora, decided on January 13. In this case, the plaintiff alleges that the police officers knowingly falsified and omitted material facts from police reports and lied to the district attorney and the Grand Jury, resulting in the plaintiff's malicious prosecution. Under Rehberg, can plaintiff proceed with his case?

He can. The Second Circuit (Wesley, Hall and Cabranes) noted that the Supreme Court in Rehberg gave officers absolute immunity for their Grand Jury testimony. This protects the sanctity of the Grand Jury process. But something you should know about Supreme Court rulings: they can be distinguished. My facts are not your facts. What drove the decision in the Supreme Court may not drive another case. The Coggins case is another case.

The facts here are pretty jarring. When he saw an officer reach for his gun, plaintiff ran away when the police approached him. Officer Buonora arrived on the scene, shouting,"shoot him in the back." The police told the DA they heard a metal noise while chasing plaintiff, and that they found a gun at the scene. After the police falsified their reports and lied to the Grand Jury, plaintiff was indicted for various crimes. The charges were dropped when one officer was found to have perjured himself.

The Court of Appeals allows this case to proceed. The case is not just about Grand Jury perjury. It's also about falsified police records and lies to the DA. Rehberg says you cannot sue over the perjury, but the Second Circuit notes that the Supreme Court did not rule out a lawsuit against the officers for the other falsehoods, even if they had some tangential relationship to the Grand Jury process. Rehberg is contained, and the case can proceed to discovery.