When can the jury know the plaintiff invoked the Fifth Amendment at deposition?

The jury trial is the name of the game. If you lose, you are entitled to file a notice of appeal, but few appeals from adverse jury verdicts are successful. The jury is allowed to view the facts any way it wants (within reason), and the judge enjoys broad discretion in making evidentiary rulings at trial. In this case, however, the appeal was successful. The Court of Appeals provides some guidance on when you can impeach the plaintiff's credibility at trial.

The case is Woods v. START Treatment, decided on July 19. The plaintiff sued her former employer for FMLA retaliation. The jury found for the employer. Plaintiff wins the appeal for two reasons: first, the trial court improperly charged the jury, telling them the plaintiff had to prove "but for" causation instead of "motivating factor." As I write in this blog post, this case represents the first time the Court of Appeals holds that the motivating factor test governs FMLA retaliation cases.

The other holding in this case is that the trial court got it wrong in allowing the employer's attorney to exploit how the plaintiff in pre-trial deposition invoked the Fifth Amendment on unrelated issues that could have affected her credibility.While evidentiary rulings are difficult to challenge on appeal, in this case, the trial court crossed the line, and the Second Circuit (Kearse, Hall and Chin) says the plaintiff gets a new trial because the evidentiary error denied plaintiff a fair trial.

In deposition, defense counsel asked plaintiff if she had ever been investigated by the City of New York. She took the fifth. She also took the fifth when counsel asked if she was accused of "some kind of immoral conduct" and whether she was accused of lying or fabricating events or submitting false documentation. She further took the fifth when asked if she was accused of misrepresenting the facts to the government. The jury knew about all of this, and defendants used plaintiff's refusal to self-incriminate against her at trial, attacking her credibility.

This was unduly prejudicial to plaintiff, the Court of Appeals held, for a number of reasons. "Most of the questions in Woods’s deposition were merely whether Woods had been accused of something. Even assuming her answers would have been 'yes,' accusations have little, if any, probative value because the innocent and guilty alike can be accused of wrongdoing. Without more, accusations do not 'impeach the integrity or impair the credibility of a witness.'' Second, plaintiff "suffered even harsher prejudice from the admission of an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of a conviction only when the crime is a felony or the court 'can readily determine that establishing the elements of the crime' required proving a 'dishonest act or false statement.' The district court here failed to consider whether the requirements of Rule 609(a) were met." Third, the jury may have thought plaintiff had something to hide when she took the fifth. The Court of Appeals explains:

the danger of unfair prejudice is high when a jury is told that a witness declined to answer a question by invoking the Fifth Amendment; the implication is, at best, that the witness refused to answer because she had something to hide. We tolerate some danger of prejudice from such inferences in civil cases, unless it substantially outweighs the probative value of those inferences. Here, the way in which Woods’s Fifth Amendment invocation was raised and later argued at closing elevated the prejudice to an intolerable level. Woods’s Fifth Amendment invocation was repeatedly emphasized—defense counsel raised it during Woods’s cross examination, the district court instructed the jury on it, and defense counsel argued it during his summation. Although defense counsel attempted to moderate this line of argument, see J. App’x 632 (“I am not hanging my hat on [the] Fifth Amendment invocation.”), he did so only after forcefully highlighting the inferences that the jury was permitted to draw. In arguing that the entire case hinged on Woods’s credibility, defense counsel told the jury “you are permitted in this case to infer that Ms. Woods was the subject of a government grand jury investigation, was accused of fraud, lying, fabricating events, and misrepresenting facts to the government and was then convicted of a crime.” Id. Defense counsel’s statement was consistent with the district court’s instruction, but the inferences that the jury was permitted to draw did not necessarily mean anything with respect to Woods’s credibility or character
for truthfulness.

2d Circuit rejects "but for"causation test for FMLA retaliation claims

The Court of Appeals holds for the first time that FMLA plaintiffs only have to show their family/medical leave was a motivating factor in their retaliatory dismissal. The Court rejects the more defendant-friendly "but for" causation test.

The case is Woods v. START Treatment, decided on July 19. (In addition to the causation standard, the Court also says plaintiff got an unfair trial because the jury knew she had taken the Fifth on certain deposition questions. I address that in a separate blog post). This case went to trial in the EDNY; the jury returned a verdict in favor of the employer. Plaintiff appealed, arguing that the trial was fatally tainted because the judge charged the jury under the "but for" test and not the "motivating factor" test. Finding that the jury was in fact wrongly charged and the bad charge could have made a difference at trial, the Court of Appeals (Hall, Kearse and Chin) remands the case for a new trial.

Woods worked for a drug rehabilitation facility. In summarizing the evidence at trial, the Second Circuit notes that management had repeatedly criticized plaintiff's job performance. However, plaintiff was fired shortly after taking FMLA leave. Disputes about what motivated plaintiff's termination entitled her to a jury trial.

The FMLA authorizes interference claims and retaliation claims. The interference claim arises when the employer prevents or impedes the employee's ability to exercise rights under FMLA. Retaliation claims "involve an employee actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action." The Court of Appeals holds that retaliation claims fall under 29 U.S.C. § 2615(a)(1), which provides: "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." (A related provision, § 2615(a)(2), provides: "It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter").

Under Section 2615(a)(1), employers cannot fire staff in retaliation for taking FMLA leave. If the case goes to trial, the jury must be charged that plaintiff need only show that retaliatory intent was a motivating factor in the decision to terminate. That means there may be other factors that motivated the termination, as well, but so long as there was some retaliatory intent in the equation, the plaintiff wins. Under the more restrictive "but for" test, which applies to claims brought under the Age Discrimination in Employment Act and retaliation claims under Title VII, retaliatory intent must have been the determining factor, that is, that intent (as opposed to some other motivation) made the difference. The Second Circuit has held the "motivating factor"/"but for" distinction generally cannot be resolved on a summary judgment motion. But it can make a difference at trial. The Court sums it up like this:

We now hold that FMLA retaliation claims like Woods’s, i.e. terminations for exercising FMLA rights by, for example, taking legitimate FMLA leave, are actionable under § 2615(a)(1). The plain language of § 2615(a)(1) supports this conclusion. Firing an employee for having exercised her rights under the FMLA is certainly “interfere[nce]” with or “restrain[t]” of those rights. Indeed, FMLA rights have two parts—the right to take leave and the right to reinstatement, so terminating an employee who has taken leave is itself an outright denial of FMLA rights.

The Department of Labor's regulations support this analysis. The Second Circuit defers to the DOL's regulations under Chevron deference, owing to the DOL's expertise in the area. While the Second Circuit hinted in Millea v. Metro-North Railroad, 658 F.3d 154 (2d Cir. 2011), that "but for" causation governs FMLA retaliation claims, the Court of Appeals now says the reasoning in Millea did not squarely address the issue in Woods' case.

Since the record contains evidence both that management took issue with plaintiff's job performance and that she was fired shortly after taking FMLA leave, the bad jury instruction could have made a difference at trial. 

Supreme Court strikes down same-sex Arkansas birth certificate rule

In its final days of the 2016-17 term, the Supreme Court issued a brief ruling that you may have overlooked. It holds that the Constitution prohibits the State of Arkansas from refusing to note that a newborn baby's parents are same-sex couples. This case is notable for Justice Gorsuch's dissenting opinion.

The case is Pavan v. Smith, decided on June 26. The female parents were married in Iowa and conceived children through an anonymous sperm donor. When the children were born, the state would only list the birth mother's name on the birth certificate. Yet, if heterosexual couples have children, both their names are on the birth certificate.

The Supreme Court holds that Arkansas's treatment of same-sex couples violates the Equal Protection Clause. Recall that a few years ago, the Court held in Obergefell v. Hodges that the Constitution makes it illegal for states to prohibit same-sex marriages. The Court now applies the reasoning in Obergefell to this case, reasoning that the state "denied married same-sex couples access to the 'constellation of benefits that the Stat[e] ha[s] linked to marriage.'" The Court adds, "As a result [of this unequal treatment], same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school. ... Obergefell proscribes such disparate treatment. As we explained there, a State may not 'exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.' Indeed, in listing those terms and conditions—the 'rights, benefits, and responsibilities' to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified 'birth and death certificates.'”

While the Court decided this case in a per curium opinion, a brief unsigned ruling, three Justices dissent: Gorsuch, Thomas and Alito. Justice Gorsuch writes the dissent, making it clear that his appointment to the Court will continue the conservatism of his predecessor, Justice Scalia. He writes:

Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Obergefell—like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders. In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the state supreme court agreed. And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.

Ministerial exception scuttles school principal's Title VII lawsuit

Not all employment discrimination can be challenged in court. If the plaintiff is a "minister" as defined by the Supreme Court, she cannot bring her lawsuit. The reason for this is a doctrine called the ministerial exception, endorsed by the Supreme Court in 2012. Last week, the Second Circuit applied that exception for the first time in holding that the principal of a private religious school cannot proceed with her gender discrimination lawsuit.

The case is Fratello v. Archdiocese, decided on July 14. I wrote an amicus brief in this case for the National Employment Lawyers Association. Fratello worked for St. Anthony's School in Nanuet, New York. After she was fired, plaintiff sued in the Southern District of New York, alleging gender discrimination. Citing the ministerial exception, the district court dismissed the case on summary judgment, and the Second Circuit (Sack, Lohier and Woods [D.J.]) affirms.

Judge Sack provides a comprehensive overview of the ministerial exception, drawing from Supreme Court and other authorities in noting that the values promoted by Title VII of the Civil Rights Act of 1964 (prohibiting gender and other forms of employment discrimination) clash with the Free Exercise and Establishment Clauses of the First Amendment, which protect the free exercise of religion and prohibit government regulation of religion. What it all means is that "ministers" as defined by the Supreme Court cannot bring these lawsuits because that would requires courts to tell religious institutions whom to employ as ministers. Some plaintiffs will end up on the losing end of these cases even if they are not formal "ministers." As the Supreme Court defined the term in Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012), you can be a "minister" if the totality of the circumstances shows you took on certain religious duties such that a lawsuit would have the effect of telling religious institutions who can spread the gospel. This doctrine is therefore not limited to actual ministers.

As principal, Fratello's formal title was not religious in nature. But that is not enough for her to get around the ministerial exception. Other factors help the defendants. The school's principal must be a practicing Catholic, committed to the teachings of the Church, and she must, among other things, exercise leadership to ensure a thriving Catholic school community. The Circuit court also says plaintiff understood that she would be perceived as a religious leader, and she performed important religious functions in that role. The Court says:

We think the record establishes beyond doubt that, as principal, Fratello “convey[ed]” the School's Roman Catholic “message and carr[ied] out its mission,” id., insofar as she: (1) consistently managed, evaluated, and worked closely with teachers to execute the School's religious education mission; (2) led daily prayers for students over the loudspeaker, and other prayers at various ceremonies for faculty and students; (3) supervised and approved the selection of hymns, decorations, and lay persons chosen to recite prayer at annual special Masses; (4) encouraged and supervised teachers' integration of Catholic saints and religious values in their lessons and classrooms; (5) kept families connected to their students' religious and spiritual development through the newsletter; and (6) delivered commencement speeches and yearbook messages that were religious in nature.Not only did Fratello perform all these functions, she was also evaluated on the quality of that performance.

In the end, no lawsuit for plaintiff. As the Second Circuit sees it, her job duties were too religious in nature to get around the ministerial exception. Although plaintiff was not a formal minister but instead a school principal, under Supreme Court authority, she was a "minister" under Hosanna-Tabor.

For appellate junkies only

I know there are appellate junkies out there. Some of you may even practice in the Court of Appeals. If you do, this case answers a question that few of us had even asked before.

The case is Hines v. City of Albany, decided on July 6. In this Section 1983 case, the plaintiff claimed the City had illegally seized and retained his SUV. The district court granted summary judgment for the plaintiff on the seizure claim. This is unusual. Normally, the defendants win summary judgment, not the plaintiff. So the City appealed from that ruling, and the Second Circuit affirmed. This all happened in 2011-2013. After plaintiff won the appeal, his attorneys moved for attorneys' fees arising from the appeal. These fees are recoverable. Defending a plaintiff's judgment in a Section 1983 case takes time and effort, and the fee-shifting statute governing these cases applies beyond the district court.

Here's the problem. After upholding summary judgment in favor of the plaintiff, the Court of Appeals said that each party would bear its own costs respect to the appeal. What does this mean? Plaintiff said that it only means that defendant was not obligated to pay the out-of-pocket costs associated with prosecuting the appeal, i.e., the cost of printing up the briefs and appendix, which can be sizable. Defendant said this means that it does not have to pay the attorneys' fees, which can be exponentially higher than the out-of-pocket costs. In this case, the appellate fees amounted to over $13,000.  The district court on remand denied plaintiff's application for those fees, concluding that the Court of Appeals wanted that result in stating that each side would bear its own costs on appeal.

The Court of Appeals (Lohier, Livingston and Rakoff [D.J.]) sides with plaintiff on this, and his lawyers get their attorneys' fees from that appeal, and presumably this appeal as well. Other Circuits have already reached this conclusion.

The Second Circuit runs through what it means to pay costs and how costs fall into a different category as attorneys' fees. But apart from the dry analysis drawing from Federal Rules, the Second Circuit also considers policy reasons, noting that the fee-shifting law allows civil rights plaintiffs to bring their cases even if they have no money, as their lawyers will have an economic incentive to pursue these claims in the knowledge that if they win, the defendant pays their fees. Without that incentive, few people would actually bring their civil rights claims to court. "Prevailing parties under Section 1988 [the fee-shifting] law are therefore entitled to recover a reasonable fee for preparing a defending a fee application. That includes attorneys' fees incurred as a result of appeals related to the defense of a fee award." While the Circuit notes that fees litigation should not turn into a second major litigation, it concludes that "plaintiffs were entitled to attorneys' fees on appeal under Section 1988 even though it was their third fee application."

Occupy Wall Street plaintiff loses excessive force case on qualified immunity grounds

This police misconduct reaches the Second Circuit for the second time. The first time around, the Court said the plaintiff had identified an issue of triable fact on the issue of whether the police officers had used excessive force in trying to arrest her after she was on the ground outside a Starbucks during an Occupy Wall Street demonstration. This time around, the plaintiff argues that the trial court on remand violated the Second Circuit's mandate in granting the officers' motion for qualified immunity.

The case is Brown v. City of New York, decided on July 5. My write-up on the first appeal is at this link. This is how I summarized the facts:

Brown tried to enter Starbucks because she had to go to the bathroom. The Starbucks was closed, and an employee called the police because a noisy crowd, bladders a-bursting, was pounding on the door. When the officers arrived, they asked plaintiff for her identification without explanation, which she declined to provide. The officers then arrested Brown, and after she resisted the handcuffs, they took her to the ground, where she continued to resist until the officers pepper-sprayed her twice. At that point, she was cuffed and taken to the police station.

This episode was videotaped, and Judge Jacobs dissented, finding that no jury could rule in plaintiff's favor in light of her resistance to police authority. Anyway, the majority specifically remanded this case "for trial." But on remand, the trial court then entertained the officers' motion for summary judgment on qualified immunity.You did not think the City law department would just allow the case to go to trial without a fight, did you? The trial court granted the qualified immunity motion, finding that the officers' actions were objectively reasonable. The Second Circuit is OK with this, holding that trial courts have discretion to manage their dockets as they see fit, including resolving dispositive motions. While the trial court was not free to entertain another motion for summary judgment on whether the officers used excessive force in arresting plaintiff (as such a maneuver would violate the mandate), "it was not constrained from considering a second summary judgment motion raising the issue of whether the Section 1983 excessive force claims were defeated by qualified immunity, and issue that [the prior appeal) never decided."

Some other procedural issues also arise in this appeal. Plaintiff says defendants waived the qualified immunity defense because they barely mentioned it in their summary judgment motion prior to the last appeal and they did not raise it in the last appeal. That is not waiver, the Second Circuit (Jacobs, Droney and Stanceu [D.J.]) holds. Trial courts have discretion to resolve issues that might have been waived, and in this case, the defendants did raise the qualified immunity defense in their answer and they also raised it in their first summary judgment motion, even if they did so in passing. While the officers did not raise that issue in the first appeal, as every appellate practitioner knows, the Second Circuit can decide whatever issue it wants on appeal and even rule against a party on issues that the other side did not raise.

Finally, the district court did not get it wrong in granting the officers qualified immunity. Officers get the benefit of the doubt in close cases; that is how immunity works. Here, the plaintiff resisted orders to put her hands behind her back for the handcuffs, and they forced her body to ground. The facts set forth in this decision do not paint a pretty picture in describing how the officers were able to place her in cuffs for her initial offense, disorderly conduct. As the plaintiff had repeatedly refused orders to follow police instructions in order to place her in cuffs, "no precedential decision of the Supreme Court or this court 'clearly establishes' that the actions of [defendants], viewed in the circumstances in which they were taken, were in violation of the Fourth Amendment." That means the defendants get qualified immunity, and they are therefore not liable. Cases in which plaintiff relies in arguing otherwise involved excessive force that was truly excessive in relation to what the plaintiff had done in the presence of the police. 

Qualified immunity undercuts police taser case involving severely injured plaintiff

I hope you never get tased. I have handled a few taser cases, and the plaintiff always testifies that being tased hurts like living hell, like being electrocuted. The taser shuts down your ability to control your body. Excruciating pain is the controlling factor. Officers are trained to use this device. Sometimes, the use of a taser lands everyone in court.

The case is Soto v. Gaudett, decided on July 5. The police tased Soto while he was fleeing the police. Soto was driving at night without headlights and made a turn without signaling. When the police tried to stop him, Soto drove off at a high rate of speed. He then got out of the car and ran away. The police told him to stop; he would not. As he was running across the street, a police car hit him and he was thrown backwards but kept running. An officer than activated his taser, which hit Soto. In the end, Soto suffered serious injuries: a fractured skull and severe traumatic brain damage. He cannot speak, walk or act as a functional human being. He also requires around-the-clock care.

The injuries are dreadful, but does he have a case? The Court of Appeals (Kearse, Jacobs and Pooler) says Soto does not. The Court applies qualified immunity, which asks whether the police violated clearly-established law. This gives the police the benefit of the doubt; even if they technically violated the Constitution, if they did not violate clearly-established case law as handed down by the Supreme Court and the Second Circuit, then the police are immune from suit. The Second Circuit appears to have abandoned granting qualified immunity when the officer's actions are objectively reasonable as a matter of fact. It became clear to the Court that that basis for immunity found no support in Supreme Court authority, and that the only basis for immunity is whether the officers violated clearly-established law. In the end, this narrow basis for immunity may not really help plaintiffs, as the immunity inquiry is still fact-specific, and the Court now asks whether the facts as set forth by plaintiff are close enough to prior cases to deny the officers qualified immunity.

This all plays out in this case. The Circuit says there are no cases as of the date of this incident -- January 23, 2008 -- that established that "a suspect who was fleeing had a right not to be stopped by means of a taser." That means the police are immune from suit; they had no basis at the time to known that someone running from the police had the right not to be tased. You may argue that if the suspect is running away and is presumably not armed, that there is no reason to tase him. But the police do have the right to seize people who are fleeing a legitimate police pursuit. The law in this area was simply to fuzzy for the police to be on notice that they could be liable under the Constitution. This all means that Soto cannot sue these officers. (The decision goes on to state that the district court identified factual issues for trial against the other officers who also pursued Soto, so he may still proceed against those defendants).