Tuesday, May 24, 2016

The ugly realities of life exposed in this disability discrimination claim

This plaintiff worked for a private hospital and repeatedly received FMLA leave over her physical ailment, cancer. After she did not return to work as scheduled, the hospital fired her. At trial, the jury awarded plaintiff a lot of money: $541,000.00 on her New York State disability discrimination claim, which the trial judge reduced to $440,000.00. The Court of Appeals takes away the verdict for good, and defendants win.

The case is Vangas v. Montefire Medical Center, decided on May 19. My guess is that this is not an FMLA case because plaintiff had exhausted her 120-day allotment under the statute. I do not know why this case did not proceed under the Americans with Disabilities Act. You don't see too many Second Circuit cases resolved solely under the State Human Rights Law, but here we are. In any case, after plaintiff's medical leave was extended on a number of occasions, she was finally supposed to return to work on August 30, 2010. The day before, plaintiff left a voice mail stating she did not feel well and was following up with doctors. She did not return to work on August 30, and was fired that day. On August 31, she conceded in a conversation with management that she was not "medically cleared" to return to work.

This is what we call a sympathetic plaintiff. She was fired at a time when she suffered from cancer. The jury certainly thought plaintiff was sympathetic, as it found in her favor. But the courts do not care about sympathetic plaintiffs. They care about applying the law. In this case, the Court of Appeals (Jacobs, Hall and Restani [sitting by designation]) says plaintiff's case fails for an elementary reason: no reasonable accommodation was available to her because she was unable to perform her job. Here is the reasoning:

At the time of her final request for leave and termination, Vangas was incapable of performing the essential functions of her job. She was not medically cleared to return to work and admitted that she could not do so. Therefore, at that time, the only possible accommodation was an extension of leave, as she was incapable of working, in any capacity, whether at home or in the office. Vangas did not request an extension of leave for a specific time period—she simply informed MMC that she was not feeling well, would not be returning to work on August 30, 2010, and could not give MMC a date for her return to work. The district court correctly interpreted these actions as requesting an indefinite leave extension, which as a matter of law is not a reasonable accommodation.
This case exposes an ugly truth of employment law, and really of life in general. Plaintiff began working for the hospital in 1989, so she put in more than 20 years. The law doesn't care. We call it "employment at will," which means you can be fired for any reason or no reason at all unless your termination violates a specific law. As the Court of Appeals sees it, plaintiff was unable to work. Yes, she has a disability, but there is no reasonable accommodation that can help her, at least none recognized by the law. So the case is over.

Monday, May 23, 2016

No harm, no foul in sex-offender due process case

Here's a civil rights case with the least sympathetic plaintiffs as possible, which is why they were awarded one dollar in damages, which the Court of Appeals affirms.

The case is Warren v. Pataki, decided on May 17. In 2005, after the State Assembly declined to pass a law that would allow this to happen, Governor Pataki got a regulation from his Department of Mental Health that allowed the government to commit certain sex offenders to further confinement even after their criminal sentences expired. Pataki came up with this idea after a violent sex offender killed someone after release from prison. The Governor did not want the state bureaucracy to waste any time in coming up with this new system. He also wanted correctional officials to "push the envelope of the State's existing involuntary commitment law." Under the Sexual Violent Predator (SVP) initiative, experts would evaluate each inmate fitting that description upon their release from incarceration. If the inmates were found to a continued threat to the public, they were sent to a psychiatric center. (The SVP initiative is no longer in operation).

Politicians and even the general public love initiatives like this, but the courts take a close look at them because the government is restricting someone's freedom after the sentence is completed. The case went to trial that lasted three weeks. Among other claims, the jury found that plaintiffs' due process rights were violated, i.e., the procedures created by the hasty SVP were not quite fair. But the plaintiffs only got a dollar because the jury said that even had the plaintiffs received due process, they would have been civilly confined post-jail sentence anyway.

Here is where things get interesting, at least for me. How do we know the plaintiffs would have been confined even had they gotten due process? Because the federal court trial was in essence a "presentation of proof at a constitutionally adequate pre-commitment hearing, allowing the jury to evaluate what the strength of the State's evidence at such a hearing would  have been." In other words, the trial replicated the due process hearing. The state psychiatrists testified what information they were given with respect to plaintiffs and what conclusions they drew based on that information, and the cross-examination of these experts by plaintiff's counsel at trial was similar to the cross-examination at a due process hearing. The jury saw what would have happened had plaintiffs gotten the due process hearing they deserved and decided that, through that hearing, plaintiffs would have ended up in the psychiatric facility anyway. Hence, one dollar in damages for the civil rights violation, but no more than that because no harm to plaintiffs.

Tuesday, May 17, 2016

Forced supermarket pricing laws are constitutional

When I worked at a supermarket many years ago, we would take the pricing sticker rolls and throw them into the night sky at Shea Stadium and watch them unravel against the stadium lights. A couple of times the stickers landed on the field, in foul territory, but the Mets in the 1980s were bad boys of baseball, and no one raised an eyebrow over what we were doing. Except for the customers at the supermarket who for the next week did not know what anything cost. This was before the days of computer scanners, and if an item had no price sticker, then all hell broke loose at the register. That was not my problem; I was packing out groceries in the aisles. This is probably why some municipalities require supermarkets to put price stickers on consumer goods.

The case is Poughkeepsie Supermarkets v. County of Dutchess, a summary order decided on May 13. The County passed a law in 1991 that requires that price stickers be placed on individual items. Plaintiff says this law constitutes commercial speech in violation of the First Amendment. Now, certain First Amendment protections apply in the commercial context, but the government has more leeway in regulating commercial speech than political or personal speech. It's quite difficult to regulate political speech, but the government has more leeway in justifying restrictions on commercial speech. The Court of Appeals (Carney, Livingston and Pooler) says "an informational disclosure law . . . [is] subject to rational review, that is, a determination of whether the required disclosure is reasonably related to the state’s interest." This "rational basis review" is the kiss of death for plaintiffs who challenge the constitutionality of governmental practices; the government can advance almost any reason to justify the restriction.

The law reads like this:

This Legislature hereby finds and determines that the Consumers in Dutchess County are entitled to clear information, setting forth the prices of consumer commodities which they purchase from retail supermarkets. A clear, easily enforceable item-pricing statute will promote the Dutchess County consumers' right to all reasonable information in order that these consumers are able to make informed choices about their purchases.
The Legislature also finds and declares that there is technology utilizing a laser scanning device offering numerous efficiencies and economies to the operation of the retail food industry. The Legislature further finds that price marking constitutes an indispensable [sic] ingredient to a consumer's right to all reasonable information in order to make an informed purchase choice.
The purpose of this Legislation is to require item pricing to protect the interest of the Consumer public, and to promote useful technology by permitting continued testing and development of the UNIVERSAL PRODUCT CODE CHECK-OUT SYSTEM without the removal of ITEM PRICE.

Under this deferential standard of review, the Second Circuit agrees that plaintiff cannot win the case. The Court reasons as follows:

Although Poughkeepsie Supermarket alleges facts seeking to show that some of the reasons for implementing the law are no longer valid, it failed to allege sufficient facts to demonstrate that the law was not reasonably related to the state’s valid interest in providing complete price information to consumers. The district court therefore correctly granted Dutchess County’s motion to dismiss for failure to state a claim.

Monday, May 16, 2016

No retaliation claim over fake FMLA leave

The Court of Appeals continues to hear cases that raise new questions under the Family and Medical Leave Act, a law enacted in 1993 that allows certain employees to take time off for personal and family medical reasons without fear of retaliation. This case is dismissed from the outset.

The case is Alexander v. Board of Education, a summary order decided on May 6. Under FMLA, employers cannot retaliate if you take FMLA leave. In this case, plaintiff claims she was retaliated against, but the Court of Appeals (Hall, Calabresi and Walker) finds on the face of the Complaint or in related documents (this appeal arises from a Rule 12 motion) that she had taken FMLA leave for fraudulent reasons. Although the Second Circuit has not addressed this issue before, other Circuits have, including the Sixth and Seventh, which have said that it's not illegal retaliation of management shows you the door over your dishonest FMLA leave.

The Court goes on to say the Complaint does not plausibly allege retaliation because "the length of time between Alexander's exercise of her FMLA leave and her discharge" is too attenuated. In addition, while plaintiff says management made hostile comments about her FMLA leave, it was not until they discovered it was fraudulent that they actually terminated her employment. So here's a nuance affecting the Rule 12/Iqbal inquiry: "Alexander's attenuated allegations were contradicted both by more specific allegations in the complaint and documents incorporated by reference."

The Court of Appeals follows the lead of the other circuits in rejecting plaintiff's claim, holding that not all FMLA leaves insulate you from termination. A dishonest FMLA leave is a terminable offense. To that end, this case is not far afield from other areas of employment law. Good faith activities are protected under Title VII and other labor laws. Bad faith activities are not.

Friday, May 13, 2016

Are hospitals profiting from charging their patients for medical records?

For those of you who think that hospitals are overcharging for copies of medical records, this case is for you. The Court of Appeals finds that plaintiffs have a claim against medical providers and a copy service who allegedly broke the law in charging too much for medical records that they needed in litigation.

The case is Carter v. Healthport Technologies, decided on May 10. Under state law, hospitals cannot profit from the photocopies. But the complaint alleges that "the fees charged by HealthPort and paid by plaintiffs substantially exceeded the cost to produce the requested medical records and included 'built in kickbacks from HealthPort to the respective Hospitals." HealthPort is the firm that coordinates with the hospitals to make these copies. When plaintiffs requested the records, they were charged 75 cents per page along with a 2 dollar fee for electronic delivery. What I love about this case is that plaintiffs have cited what appears to be smoking gun evidence that the defendants are in fact profiting from these photocopies, suggesting that the hospitals are not only in the business of providing medical services. They are also in the photocopying business. The Second Circuit says:

To support this allegation, plaintiffs attached to the Complaint printouts of two advertisements on HealthPort's website offering "hospitals and large clinics" a "shared release of information (ROI)" or "ROI Partner" service, for responding to requests for medical records.
One advertisement stated to offerees, "[w]ith HealthPort ROI Partner, you will gain significant cash flow from the ROI process . . . ."

The other advertisement proffered testimonials from users of HealthPort's ROI services:
Just ask--our clients will tell you that our release of information services . . . will . . . boost revenue. Thus, HealthPort quoted a Florida hospital's Administrative Director of Health Information Management, who wrote, inter alia, "We decided to go with" HealthPort's "ROI Partner" service; "[n]ow we're a revenue generating department."
The district court dismissed the case on standing grounds, that is, the plaintiffs themselves did not request the medical records. Instead, their attorneys requested the records. Since the attorneys are not the plaintiffs, the plaintiffs lack standing to bring the case. The Court of Appeals (Kearse, Walker and  Cabranes) sees it differently. Under established case law, lawyers are the agents for their clients. If the lawyers requested copies of their clients' medical records, then they acted on their clients' behalf. So the plaintiffs really are the legitimate plaintiffs, and this case can proceed, and defendants are going to have to explain away the above evidence that suggests the hospitals are turning a profit from these copies.

Tuesday, May 10, 2016

Pro se inmate wins constitutional argument on appeal

This pro se inmate wins his case against the State of New York, convincing the Second Circuit to reinstate his religious freedom case.

The case is Williams v. John Doe, a summary order decided on May 6. Plaintiff is in the slammer. He says the jail's food practices violate his religious freedom under the First Amendment. When a case is filed, the judge may dismiss it out of hand if it does not plausibly assert any claims. So the bar is low, but it's also high, because plausibility may be in the eye of the beholder. That's what the Court of Appeals is for.

These cases require proof that a government entity's practices substantially burden your religious beliefs. Although the public may not like this, inmates have religious rights under the First Amendment. In setting up the holding, the Second Circuit (Hall, Calabresi and Walker) says "We have reasoned that when determining whether a prisoner’s religious beliefs have been substantially burdened, the relevant question is whether the infringed-upon religious activity is considered central or important to the prisoner’s practice of his religion." Here's the analysis:

Here, Williams’s complaint alleged that the premature sunset meals forced him to either forego his meal or break his fast; he characterized fasting for Ramadan as important to his practice of Islam and stated that eating before sunset was a “grave spiritual sin” that canceled the “validity” of fasting. Consequently, Williams successfully alleged a plausible free exercise claim.

In rejecting the claim, the district court relied on non-binding case law that says plaintiff suffered a trivial burden because only a few of his meals were delivered prematurely. But that case law runs afoul of Second Circuit precedent, which cautions against "the danger that courts will make conclusory judgments about the unimportance of the religious practice" to the plaintiff.

Monday, May 9, 2016

Hearsay breach entitles correction officers to new trial

Trial judges have substantial discretion in ruling on evidentiary issues at trial. It is hard to gain a new trial even if the judge mishandles an evidentiary ruling. This is partly because of the standard of review on appeal: abuse of discretion. Also, the appellate court will apply harmless error analysis, i..e., the evidentiary error would not have made any difference. This evidentiary appeal succeeds anyway.

The case is Abascal v. Fleckenstein, decided on April 29. Plaintiff was an inmate who sued correction officers over nutritionally inadequate food. He actually won at trial. The jury awarded plaintiff a dollar in nominal damages and $150,000 in punitive damages, to be split 50-50 among the two defendants. But the verdict is gone and a new trial is ordered because of hearsay evidence that hurt the defendants' case.

The case arose at Attica Correctional Facility. Plaintiff claims the CO's prevented him from leaving his cell during 14 mealtimes in retaliation for a grievance he filed over his mistreatment. At trial, the judge allowed the plaintiff to introduce a report from the Correctional Association of New York, a private organization that monitors prison conditions. That report was published a few weeks after the last incident of abuse alleged by plaintiff. Based on anonymous inmate survey answers, the report -- which does not identify its authors -- said that CO's at Attica were abusive and created a widespread climate of fear among inmates.

You can see how this report might sway the jury. The report says Attica is a hellhole, and plaintiff's claim alleges that Attica is a hellhole, so the report corroborates his claim. Except that the report is hearsay. It is an out-of-court statement that was introduced to prove that the Jail is a hellhole. You cannot cross examine a report. While there are exceptions to the hearsay rule, none apply here, including the public records exception (the report is not a public record but a private document) and the business records exception. The latter exception does not apply because the report was not prepared contemporaneous with the events in the case and does not have any trustworthiness since we don't know who prepared it and there is no way to verify that the incidents in the report took place when plaintiff's case arose. We also don't know if the report was prepared by someone with knowledge of the events described in the report. The report is also not the kind of regularly-prepared document that we normally associate with the business records exception to the hearsay rule.

The Court of Appeals (Hall, Pooler and Carney) finally say the erroneous admission of the report was not harmless error. The jury was probably influenced by the report, and it corroborated plaintiff's claim that the CO's had abused him through retaliation. And plaintiff's lawyer heavily relied on the report during summation. Since this case "was not particularly strong," the report made a difference at trial and the CO's get another shot before the jury.