Wednesday, April 8, 2020

Qualified immunity knocks out warrantless search and too-cold air conditioning case

It is a cardinal rule of federal appellate practice that you cannot take up an appeal until the entire case is over, and every last issue is resolved. One exception to that rule is when public defendants are seeking qualified immunity, which is the legal principle that you can't sue police officers and other public employees if they did not violate clearly-established law. This exception allows us to honor the rule that qualified immunity should be resolved as early in the case as possible, even if that means you can appeal the denial of such immunity before the parties even start discovery.

The case is Shakir v. Stankye, a summary order issued on March 24. This case alleges that the police officer unlawfully executed an arrest warrant, as follows: the police came to plaintiff's home and repeatedly knocked on the door while plaintiff remained in the house for 10 to 15 minutes. After they finally arrested plaintiff, they asked about the whereabouts of his son, A.S., who was living with plaintiff's mother. Plaintiff would not tell the police where his son was, so the police entered plaintiff's home and found A.S. and escorted him out. The police were looking for A.S. because there was an allegation that plaintiff had sexually abused him.

Can plaintiff proceed with this suit? The police say they had to enter the house without a warrant under the "exigent circumstances" exception to the warrant rule, which holds that the police can proceed without a warrant if necessary to protect someone from imminent harm and there is no time to get a warrant. But plaintiff cannot proceed with the case because there is no case on point that holds that the police violated the Fourth Amendment in entering the house without a warrant. Instead, "the circumstances here were such that Stankye could reasonably believe that A.S. was inside Shakir's home and in need of assistance, a sufficient basis to conduct a warrantless search." Plaintiff's refusal to tell the police where A.S. was supported the police officer's reasonable belief that A.S. was inside the home. It was also reasonable for the police to believe that A.S. was in need of assistance, since he had just arrested plaintiff for child sexual abuse. Since the officer gets qualified immunity, the Court of Appeals (Jacobs, Hall and Livingston) does not determine whether plaintiff's underlying rights were violated; since the law was not clearly-established that plaintiff's rights were in fact violated that day, there is no point in determining whether, absent the qualified immunity inquiry, the officer violated plaintiff's rights.

Plaintiff also sues the officer for violating his right to constitutional conditions of confinement at the police headquarters. This claim also fails under the qualified immunity test, since plaintiff cannot show the officer violated clearly-established law in (1) requiring him to strip to his underwear to show he was not armed; (2) taunting plaintiff about his high bail; (3) turning the air conditioning in his cell to the maximum, causing plaintiff to get sick. The main issue for plaintiff is the air conditioning, but no court has yet held that brief exposure to cold violates the Constitution. While cases hold that prolonged exposure to bitter cold may violate a prisoner's constitutional rights, that is not close enough to plaintiff's case to show that the officer was on notice that he was violating the Constitution. So that claim is dismissed, as well.

Tuesday, April 7, 2020

Overtime pay available to plaintiffs under the New York Labor Law

The Court of Appeals holds that employees who were not entitled to certain overtime pay under the Fair Labor Standards Act can still get that overtime under the New York Labor Law.

The case is Hayward v. IBI Armored Services, Inc., issued on April 3, only a week after the case was argued. Plaintiffs transported money to and from grocery stores and banks in New York City. Since May 2014, they have not been paid overtime (1.5 times their hourly rate). Hence, this lawsuit.

The FLSA has a Motor Carrier Exemption, which means certain motor carriers do not get that overtime pay. The district court said this exemption not only guides the FLSA but also the New York Labor Law. The Court of Appeals says plaintiffs are in fact entitled to that overtime pay under state law. Under state law, "employees subject to FLSA exemptions like the Motor Carrier Exemption are nonetheless entitled to overtime compensation at a rate of one-half times the minimum wage."

The Second Circuit reaches this conclusion through careful analysis of the New York Labor Law, which surgically adopts certain FLSA provisions but not others. Specifically, while plaintiffs cannot get 1.5 times their regular wage under the FLSA and the New York Labor Law, they are entitled to 1.5 times the minimum wage under the New York Labor Law.

Monday, April 6, 2020

Chipotle managers may be able to bring collective action under FLSA

The Court of Appeals in this case says the plaintiffs may bring a collective action against their employer for violations under the Fair Labor Standards Act, but they cannot bring a class action. The Court uses this case to clarify the rules for certain collective actions.

The case is Scott v. Chipotle Mexican Grill, LLC, issued on April 1, one of the rare cases decided more than one year after oral argument. Defendant is a Mexican restaurant chain with more than 2,000 restaurants. Plaintiffs claim the restaurant misclassified them as managerial employees, which means they cannot recover overtime pay. Since we got a lot of potential class members (known within the restaurant as "apprentices") an incorrect classification means this would be a profitable case for them and their attorneys.

To maintain a class action, the potential class members must show their claims are sufficiently numerous, have legal issues in common, their claims are typical, and the class members will adequately represent the class as a whole. The district court decertified the class, reasoning that the common factual and legal questions raised by the case were outweighed by individualized questions surrounding each plaintiff's primary duties. Plaintiffs claimed their primary duties were managerial in nature. The predominance requirement for class actions is met "if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." This is the predominance inquiry.

The problem for the class plaintiffs, the Second Circuit (Chin, Sullivan and Parker) holds, is that, while the range of managerial tasks (such as employment decisions, scheduling, inventory, and performance evaluations) and the range of manual labor tasks (such as working the line, serving customers, etc.) are similar, the primary duty performed by the class plaintiffs are not sufficiently similar. For example, while some apprentices prepared and disbursed scheduled without approval from higher management, others did not perform this managerial task because they did not believe they had authority to do so. In other words, despite some common questions of fact surrounding their job duties, "the disparate accounts from Apprentices proved fatal to the predominance inquiry."

But the plaintiffs do convince the Second Circuit that the district court got it wrong in denying their right to bring a collective action, which is a concept unique to the Fair Labor Standards Act, allowing "similarly situated" employees to band together for a suit. This is different from a class action. The Second Circuit uses this case to clarify what it means to be similarly situated under the FLSA, noting that the Ninth Circuit said in 2018 that to be similarly situated, the "named plaintiffs and opt-in plaintiffs are alike with regard to some material aspect of their litigation," such as a similar issue of fact or law relevant to disposition of their FLSA claims. "It follows that if named plaintiffs and party plaintiffs share legal or factual similarities material to the disposition of their claims, dissimilarities in other respects should not defeat collective treatment." This is new law in the Second Circuit.

But there is more to the collective action analysis. Under "step two" of this so-called "ad hoc" framework, courts have considered the disparate factual and employment settings of the individual plaintiffs, defenses to the case that might be individual to each plaintiff, and fairness and procedural considerations counseling for or against collective action treatment. Some courts even use the "sliding scale" approach, which conflates certain class action principles with the certification rules. The Second Circuit rejects these approaches and holds that the requirements for certifying a class action under FRCP 23 are unrelated to and more stringent to the requirements for similarly situated employees who bring a collective action under the FLSA. Since the district court rejected the collective action under the "ad hoc" approach, that was improper. The case returns to the district court to resolve that issue under the analysis in this appellate ruling.

Friday, April 3, 2020

Pro se inmate wins deliberate indifference dental treatment appeal

Inmates who bring medical indifference claims against their jailers mostly lose their cases because the legal standards adopted by the courts impose evidentiary hurdles that usually doom their chances of victory. But the courts sometimes find that the inmates have enough evidence for a jury trial. This is one of those (rare) case, all the more remarkable because the inmate won his appeal pro se against the Connecticut Attorney General's office.

The case is Gaffney v. Perelmuter, a summary order issued on April 1. To win these claims under the Eighth Amendment, the inmate has to show that (1) his medical condition was sufficiently serious and (2) the medical defendant acted with deliberate indifference to his medical needs, that is, that the defendant acted or failed to act while actually aware of a substantial risk that serious inmate harm will result.

As an aside, did you notice how detailed that multi-part constitutional standard is? The Eighth Amendment does not articulate this test. Rather, this test is judge-made. Do people realize that most constitutional issues are resolved on the basis of multi-part legal standards that were crafted by appellate judges over the years? I am not saying this is right or wrong, but the point is worth pondering.

We have two issues here: first, whether the dentist's choice to extract the plaintiff's tooth even though putting in crowns may have been the better treatment. But plaintiff loses that claim on summary judgment because he neither alleges the treatment option was foreclosed by prison policy or that based on monetary or other improper incentives. At best, he only argues the extraction choice was incorrect and that other dentists said extraction was unnecessary. That might be enough for a dental malpractice case under state tort law, but it will not work in an Eighth Amendment case brought under Section 1983.

However, plaintiff can win his claim alleging the dentist was deliberately indifferent to his pain during the extraction itself. Plaintiff alleges the dentist began working on his tooth before the Novocain kicked in, and that he ignored plaintiff's cries of pain and instead "digged" and "stabbed" in his mouth.  Folks, this is why people don't like going to the dentist. Here is how the Court of Appeals (Jacobs, Sack and Hall) analyzes the case

Construed liberally, Gaffney argued that Perelmuter was deliberately indifferent during the extraction in two distinct ways: (1) Perelmuter knew or should have known that ten minutes was insufficient time for the Novocain to take effect and for Perelmuter to properly extract the tooth, and (2) Perelmuter evinced conscious disregard of Gaffney’s pain during the extraction by ignoring his cries of pain, failing to provide further pain relief, and continuing to “dig” and “stab” the area. Viewing the evidence in the light most favorable to Gaffney, both arguments succeed.
The following evidence further supports plaintiff's claim (and reinforces why people hate going to the dentist):

First, "That ten minutes was an insufficient time is further supported by the evidence of complications during the extraction: the tooth broke in the gum and Gaffney required several follow-up visits (including two procedures to slice the gum away from the cheek); and

Second, "Gaffney asserted that he yelled out, moaned and groaned, and held his knees to his chest, and a reasonable jury could infer that Perelmuter knew from that reaction that Gaffney was in pain. A reasonable jury could also conclude that the confluence of factors here (proceeding with insufficient time, ignoring yells of pain, breaking the tooth, repeatedly slipping and stabbing the area), even if considered individually would not show deliberate indifference, taken together show that Perelmuter evinced a conscious disregard to Gaffney’s pain and dental health during the extraction."

Wednesday, April 1, 2020

Sexual hazing in the workplace is not enough for sexual harassment case

You learn something new every day. Today, you will learn that, in some workplaces, workers will tea-bag each other. This a form of sexual harassment. Unfortunately for the plaintiff who brought this case, the tea-bagging does not give him a lawsuit.

The case is Hoit v. Capital District Transportation Authority, a summary order issued on March 30. On his last day of work, coworkers assaulted and tea-bagged him. In a footnote, the Court of Appeals tells us about tea-bagging: "This Court has defined tea-bagging as 'a hazing act—indeed a form of sexual assault—during which the victim is pinned down on the floor by several [people] while another [person] rubs his genitalia in the victim’s face.'” Plaintiff claims his coworkers:

pinned him to the floor “dry humped” him by “rubbing his hips and groin on [Hoit’s] back, while making humping noises and telling [Hoit] to ‘Let it happen. Let it happen.’” Hoit yelled at Clanton to get off of him and physically struggled to get away. Then Baez, a foreman for the mechanics, came running over, pulled his pants down and kneeled over Hoit’s head in his boxer briefs, placing his clothed testicles on Hoit’s head. Clanton continued to hold Hoit down during the Incident. Meanwhile, Mancini, a foreman for the service technicians, recorded a video of the Incident on his phone. After the Incident, Hoit worked the remainder of his shift, taking a cigarette break with Clanton and a meal break with Baez and Mancini.

The case was dismissed for failure to state a claim under Rule 12, and the Court of Appeals (Winter, Hall and Cote [D.J.]) affirms. The case is over.

Plaintiff loses because he sued under the New York State Human Rights Law, which only allows you to sue the employer if it condones, encourages or approves the offending conduct. It is not enough for plaintiff to argue that management should have known about the rumors of the sexually explicit work environment. These rumors mostly involved coworkers exposing themselves at work and other "sexual harassment stuff." The employer did not receive any complaints about this, except for something that happened in 2009, which the CDTA handled appropriately.

Plaintiff also sues Clanton individually under Section 1983, which provides relief for constitutional violations under the Equal Protection Clause. Plaintiff cannot win that claim, though, because Clanton did not sexually harass plaintiff "under color of state law," meaning, he was not "misusing some power that he possessed by virtue of state law." Supreme Court and Second Circuit authority holds that Section 1983 does not cover the "personal pursuits" of government officials, such as "hazing or horseplay."

Tuesday, March 31, 2020

Ever hear of the "trivial defects doctrine"?

As Judge Calabresi writes in his opening paragraph, this is a routine trip and fall case. A routine tort case that was filed in federal court, that is, because the plaintiff is suing the Transportation Security Administration, also known as the TSA. The Court of Appeals finds that plaintiff's case is not substantial enough for a lawsuit.

The case is Coyle v. United States of America, issued on March 30. When plaintiff was arriving at Idlewild Airport in New York City after a trip from Fort Lauderdale, she tripped on the rubber matting near the TSA screening machines, breaking her nose. She argues that the mat created a danger for travelers. She sues under the Federal Tort Claims Act, for which the United States can be held liable. The question here is whether the U.S. breached its duty of care to Coyle. If it did, then summary judgment is not proper and Coyle can win at trial.

There will be no trial because summary judgment was properly granted, the Court of Appeals (Calabresi, Lohier and Park) rules. She loses under the "trivial defect doctrine," a relatively obscure rule that exempts the defendant from tort liability for "negligent maintenance by reason of trivial defects on a walkway . . . as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection." Never heard of this doctrine? Neither did I.

Based on Coyle’s testimony as well as the photographs of the mat and its surroundings in the TSA screening area that Coyle presented, we conclude that TSA’s use and placement of the mat over which Coyle tripped constituted a trivial condition, and hence can be held to be non-negligent as a matter of law. . . . This was not a situation where Coyle was “naturally distracted from looking down at [her] feet” and for that reason did not notice that a mat was on the floor. And Coyle has made no claim that the terminal was dimly lit, or crowded, or even that she was in a rush to make her flight. Indeed, even with the delay caused by her fall, there was still nearly an hour between Coyle leaving the TSA screening area and her flight’s departure. In the absence of any such variables, the presence of a floor mat placed on the floor, even a one-inch thick black mat on a black floor, is—under the triviality doctrine—simply not a sufficiently dangerous condition to constitute negligence

Thursday, March 26, 2020

High school basketball protest gives rise to free speech claim

This is an unusual case, but not so unusual that the defendants are entitled to qualified immunity as a matter of law. It involves public school parents who did not like how the girl's high school basketball coach was managing the team. It turned into a First Amendment case.

The case is Frierson v. Reinisch, a summary order issued on March 26. Plaintiff was one of the student-athlete's parents. He met with the student-athletes who were contemplating some kind of bold action to protest the coach. Some suggested the girls basketball team walk off the court during a game. No such walk-out took place, but Reinisch,  the athletic director for the Troy City School District, had heard about all of this and investigated the "rumor" of a student protest. A videotape from the school showed plaintiff meeting with some of the players. There was no audio. Reinisch next told plaintiff that he was banned from attending future school district sporting events.

The district court said plaintiff has properly asserted a First Amendment case, and that the law was clearly established that, if plaintiff's allegations are believed by a jury, defendants cannot invoke qualified immunity, which attaches when the case law on the precise issue raised by the case is unclear and the defendant public officials are therefore not on notice that they are violating the Constitution. The Second Circuit (Carney, Wesley, and Menashi) affirms, and the case now proceeds to trial.

The law was clear for a case like this because the Second Circuit held in Johnson v. Perry, 859 F.3d 156 (2d Cir. 2017), had already addressed a case like this. "In the specific context of retaliation by a school official restricting access to athletic events, we have said that where, as here, a public school invites parents and other spectators to attend sporting events held in its gymnasium, the gymnasium operates as 'a limited public forum' and the school may restrict access to a limited public forum only when (1) 'its restrictions are reasonable and viewpoint-neutral,' or (2) 'there is a clear and present danger of disruptions such as disorder, riot, obstruction of the event, or immediate threat to public safety.'”

The facts in Perry are similar to this case. In Perry, the father "was banned after complaining to school administrators that his daughter, a member of the varsity basketball team, wanted to quit the team because the coach was treating her unfairly. When the father learned that school officials were pressuring his daughter to remain on the team, he met with the principal, and the two exchanged heated words. The following day, the principal informed the father that he was banned from attending all future school sporting events, purportedly because the father’s 'verbal altercations, physical intimidation and direct threats to staff ha[d] created an unsafe environment for staff, students and other parents.'” Since the jury could find that the father in Perry posed no threat to anyone and the principal's motive in banning him from future sporting events was retaliatory, the father had a case. That's the situation before the Second Circuit in Frierson.