EEOC charge does not toll statute of limitations for state law claims

The Court of Appeals holds that the filing of an EEOC charge does not toll the statute of limitations for related state torts claims. This is worth knowing if you handle cases like this, and it requires that you keep both eyes on the calendar.

The case is Castagna v. Luceno, decided on May 5. Imagine how this all plays out. A client comes to you with a sexual harassment lawsuit that you can file under Title VII. The harasser also touched her inappropriately, so the potential client also has state law claims for assault and battery and maybe even intentional infliction of emotional distress. So you file the EEOC charge to preserve her right to proceed under Title VII in federal court. You have 300 days to do that in New York. But what about the statute of limitations on the state law torts claims? Normally, in New York, intentional torts carry a one-year statute of limitations. But sometimes the EEOC process takes more than a year to wind down before you get the Right-to-Sue letter that allows you to sue in federal court.

The dilemma is that you don't want to waive the state law claims. The possibility exists that, at trial, you win under state law but lose under Title VII. That can happen if management properly responded to the plaintiff's in-house sexual harassment complaints, giving the defendants a legitimate affirmative defense under the Supreme Court's rulings in Faragher and Ellerth. But that does not prevent the plaintiff from prevailing against the harasser himself for assault and battery, no matter how effectively management handled her in-house complaints. Bottom line: you have to sue under federal and state law to preserve your client's rights.

Here is how the Court of Appeals (Stein [D.J.], Lohier and Livingston) frames the issue:

Our Court has not previously determined whether filing an EEOC charge tolls the statute of limitations for state tort claims arising from the same nucleus of facts as underlie the EEOC charge. We now join the U.S. Courts of Appeals for the Seventh and Ninth Circuits in holding as a matter of federal law that filing an EEOC charge does not toll the limitations period for state‐law tort claims, even if those claims arise out of the same factual circumstances as the discrimination alleged in the EEOC charge.

What this means in plain English is that when you file the EEOC charge, the statute of limitations on the state claims continues to run. The problem for plaintiff in Castagna v. Luceno is that the statute of limitations on the state law claims did expire by the time her lawsuit was filed in federal court. After the district court threw out the state law claims on timeliness grounds, her lawyer argued in the Court of Appeals that "were the statute of limitations for state tort claims not tolled pending the EEOC’s consideration of a charge of discrimination, to preserve her claims, a litigant would be forced first to bring a tort case in state court 'and later bring a federal, discrimination related claim in federal court ... with an identical set of facts,' thereby 'thwart[ing] . . . the judicial efficiency encouraged by the grant of supplemental jurisdiction ... in 28 U.S.C. § 1367.'” Not a bad argument, but the Court of Appeals says that "although EEOC proceedings 'often are beneficial' in resolving workplace disputes, ...'nonetheless[] ...Congress did not intend for these proceedings to delay independent avenues of redress.'" In addition, "a plaintiff who in the future finds herself in Castagna’s situation 'may ask [a] court to stay proceedings' in the initial action 'until the [EEOC’s] administrative efforts ... have been completed.'” The plaintiff's state law claims in this case are gone.

Plaintiff finally argues to the Court of Appeals that "New York law mandates tolling of the time in which to file her state tort claims, again because of the pendency of her EEOC charge." The Court does not take up this argument because plaintiff did not assert them in the district court and they are therefore waived.

So here's the bottom line: if you have a Title VII claim and also want to pursue state law claims in the federal lawsuit, to ensure that the statute of limitations on the state law claims is not blown by the time you get the Right-to-Sue letter, you may have to file the tort claims in state court while the EEOC charge is pending (unless you know you can get the Right-to-Sue letter within 365 days after the plaintiff suffered the state law violations, which is a possibility if you file the EEOC charge soon after the sexual harassment took place). If you don't want to litigate related claims in separate courts (and who does?), when the Title VII case is finally brought in federal court, you can try to consolidate all claims in the federal action, resulting in the voluntary dismissal of the state lawsuit.

Court of Appeals revives medical indifference claim under Iqbal

A few years ago, the Supreme Court issued a new standard governing when a lawsuit can proceed to discovery. We call it the Iqbal standard. It requires that the plaintiff show that she has a plausible case, not simply a possible case. We can always use more guidance from the Second Circuit on Iqbal plausibility. This case provides some, with an interesting dissent from Judge Jacobs that asks the question: at what point do we simply disbelieve the plaintiff's allegations on their face?

The case is Nielson v. Rabin, decided on February 13. Nielson claims the police kicked the hell out of him on the street. He ended up in the hospital, where hospital staff minimized the nature of his serious injuries and did not provide him proper treatment. He sues the doctor for deliberate indifference to serious medical needs, a claim that arises under the due process clause of the Fourteenth Amendment. In order to win a case like this, you have to show (1) you had a serious medical situation (2) to which government officials were deliberately different. Medical negligence is not enough to win. You have to show that the doctors (or prison guards whomever else is in a position to help someone in dire pain) basically said, "screw it."

Here is what the lawsuit alleges:

After the beating, Nielsen was taken to the emergency room in a wheelchair where he complained of severe pain in his shoulder and back and a broken nose. There, he was evaluated by Dr. Rabin and Dr. Sylvia Tschenyavsky. Even though Nielsen screamed when his shoulder was lightly touched, the doctors reported that his level of pain and discomfort was low: a two out of ten. The doctors diagnosed Nielsen as having “mild bruising” and suggested that he was “malingering” – fabricating or exaggerating his symptoms. No X‐rays, CT‐scans or MRIs were performed, and no significant treatment was provided.

 After the City filed a motion to dismiss, plaintiff (representing himself pro se) wrote in his brief that the doctor refused to treat him at the offending police officer's direction. The Second Circuit (Kearse and Straub) summarizes the new allegations: "the officers who brought him to the emergency room told Dr. Rabin that he had attacked a female police officer and that he should be ignored and left alone. According to Nielsen, no such attack actually occurred. Nielsen also alleged that Dr. Rabin allowed herself to be influenced by the officers."

The Court says that Nielson alleges a plausible claim that Dr. Rabin was deliberately indifferent to his serious medical needs. This holding is not remarkable, except that it raises an important question under Iqbal plausibility: at what point do we believe or disregard what the plaintiff says in the complaint simply on plausibility grounds? What triggers this debate on the Court is Neilson's claim that a medical doctor did not treat the plaintiff because a police officer told her to. Judge Straub writes:

We would love to live in a world where it is implausible for a doctor to disregard her oath and refuse to treat a patient she believed had attacked a female officer – just as we would love to live in a world where it is implausible for an employer to be so irrational as to refuse to hire a qualified applicant because of the applicant’s skin color. Unfortunately, we do not. Taking the allegations in Nielsen’s complaint and his opposition brief as true, Nielsen can plausibly allege that Dr. Rabin acted with a sufficiently culpable state of mind.

This language helps plaintiffs who bring routine discrimination and other claims alleging they were treated illegally. The world is not perfect, and people do bad things. It's often plausible to allege that something illegal happened to you, including employment discrimination.

In dissent, Judge Jacobs says this ruling ignores plaintiff's medical records and also disrespects the medical profession. Disagreeing with the majority's interpretation of the record, Judge Jacobs says plaintiff did not really suffer a serious physical injury. "The claim thus becomes that two doctors violated their oaths and that a nurse falsely reported that Nielsen was in a low level of pain at the time of discharge, all at the behest of police officers who told the doctors that their patient should be neglected. This claim, which is absurd, is easily classed as implausible." He adds, "the majority’s ruling on plausibility unintentionally implies a certain disrespect for the ethics of doctors and nurses. The majority deems it plausible that each of these medical professionals (and all of them together) would allow a patient’s suffering to go unabated at the say‐so of policemen expressing hostility to a person in custody."

Judge Jacobs then describes the ills of Section 1983 litigation, and the financial burden it can place on individual defendants, some of whom are not indemnified by their government employers. He has said this before in written dissents. "There is insufficient appreciation that this section 1983 action is a personal claim against the individual assets of Dr. Rabin, and that the defense costs of such a claim alone can wipe out a college fund or equity on a home." He adds, "The plausibility test in cases such as this is a safeguard against a financial injustice that can often outweigh the harm claimed by a plaintiff. True, some or many defendants are indemnified by employers or insurers (though insurance may not cover intentional acts); but such an arrangement would be dehors the record, and may not be considered by us in deciding whether a claim survives through the expense of discovery and extended motion practice."

Sex offender has no "stigma plus" claim

Are there any civil rights cases that are harder to win than "stigma plus" cases under the Fourteenth Amendment? There are some, but few. My memory may be off, but I don't think the Second Circuit has sustained a "stigma plus" claim in years. This case fails as well.

The case is Balentine v. Tremblay, a summary order decided on February 11. Stigma plus claims allege that the government defamed you in such a way that you were deprived of a tangible interest, like a property or liberty interest, without due process. It often happens when someone is fired from a government job in a manner that the employee cannot find other work (like if was accused of ethical breaches). As the Second Circuit (Cabranes, Carney and Droney) reminds us, "reputation alone, apart from some more tangible interests, is not sufficient to invoke the procedural protection of the Due Process Clause."

Stigma-plus cases are frustrating for civil rights lawyers who wants to ride the white horse into federal court on behalf of someone who got screwed by the government. And these plaintiffs can be sympathetic, having been defamed and unable to find work because of that defamation. Other stigma-plus cases say that the loss of the right to a public education can meet this standard. The plaintiff in this case is not sympathetic, though. He is a convicted sex offender from New York who moved to Vermont. He sued because the state posted  his face on the "high risk" online sex offender registry without the notice or opportunity to be heard on whether he had successfully reintegrated into the community.

This mistake may have defamed plaintiff, so that satisfies the "stigma" prong of the "stigma plus" case. But there is no "plus" here. "Balentine was properly classified as a sex offender subject to the accompanying registration and notification requirements, and he does not claim that Vermont wrongfully imposed any substantive legal burden on him. Moreover, his alleged reputational damage resulting in the loss of private employment, humiliation, and embarrassment are inadequate to satisfy the 'plus' requirement." While plaintiff says he was denied the opportunity to be heard prior to the online registry posting, that denial does not count as a "plus," either. That is not the deprivation of a tangible interest under Supreme Court authority.

Sexual orientation claim is not permitted under Title VII

This employment discrimination case acquaints us with various ways that a lawsuit can be dismissed. The plaintiff sues for gender discrimination under state and federal law. The Court of Appeals upholds dismissal, and the case is over.

The case is Giudice v. Red Robin International, a summary order decided on February 13. The Court has a hard time figuring out what exactly the claim is. The plaintiff, a male, sues for gender discrimination. "It is difficult to discern from Giudice’s submissions on appeal whether he argues that his protected activity consisted of complaining to Red Robin about discrimination based on his sexual orientation or based on his sex." Yet, plaintiff's affidavit says he was harassed because of his sexual orientation. That knocks out the federal claim. The Court (Raggi, Pooler and Kearse) reminds us that Title VII prohibits sex discrimination, not sexual orientation discrimination.This is a retaliation claim, putting a new wrinkle on the issue. But since sexual orientation discrimination is not protected under Title VII, the plaintiff does not have a good-faith complaint of discrimination that would predicate a retaliation claim. Borrowing from a case where the plaintiff claimed retaliation for complaining about the boss's illicit lover, the Court says,

This Court has not yet ruled on the specific question of whether a plaintiff may, under Title VII, maintain a claim of retaliation based on adverse employment action resulting from his complaints about sexual-orientation discrimination, although in Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10 (2d Cir. 2013), we did hold that a plaintiff could not maintain a Title VII retaliation claim based on a mistaken belief that complaining about “paramour preference” was protected activity under the statute.

Under New York State law, however, sexual orientation discrimination is illegal. But plaintiff still does not have a case. While plaintiff claims retaliation shortly after speaking out against the harassment, the Court says, "[w]here, as here, the only basis for showing causation at the prima facie stage is a temporal nexus, 'and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.' Red Robin began disciplining Giudice years before his formal complaint of harassment on June 14, 2010." In other words, management was disciplining plaintiff long before he engaged in protected activity. That undercuts the connection between his complaints about harassment and the discipline that prompted him to bring this lawsuit.

So, while "the record on summary judgment reveals that some of the treatment that Giudice experienced at work was disturbing and inappropriate," he does not meet the technical requirements needed to win a case like this.

Equal Pay Act case is revived on appeal

This Equal Pay Act case comes back to life after the Court of Appeals agrees with a pro se plaintiff that she has a claim for unfair treatment because of her gender.

The case is Chepak v. Metropolitan Hospital, a summary order decided on February 13. To win a case under the Equal Pay Act, the plaintiff must show that “(i) the employer pays different wages to employees of the opposite sex; (ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (iii) the jobs are performed under similar working conditions.” Under this legal standard, what does it take for the plaintiff to make out a plausible claim that allows her to take discovery? The Second Circuit (Leval, Calabresi and Lynch) tells us: "Chepak alleged that she was given a different title, but required to do the same job for less pay, as her male predecessors. In light of Chepak’s pro se status, those allegations were sufficient to survive a motion to dismiss." 

Plaintiff also sues under Title VII of the Civil Rights Act of 1964, which more broadly gives you the right to sue for sex discrimination. She has a claim under that law as well. The Court of Appeals says, "Chepak’s complaint alleged that she is a woman, that she sought promotion to a status and pay level held by similarly situated males, and was denied. Especially in light of her pro se status, those allegations were sufficient to state a claim."

The district court threw out the case. The case now returns to the district court for discovery. Where did the district court go wrong? According to the Court of Appeals, the trial court "dismissed Chepak’s EPA and Title VII discrimination claims based on the job descriptions submitted by Metropolitan Health." This was wrong, the Court of Appeals says. I'm not sure how the job descriptions fit into the equation. Maybe the employer argued that plaintiff was not comparable to the male workers because she had different job duties. But that won't work on a motion to dismiss. "Whether or not the job descriptions may sometimes be considered on a motion to dismiss, it is clear that the job content and not job title or description is the standard for determining whether there was a violation of the anti-discrimination laws. Even if the job descriptions were properly considered in reviewing defendant’s motion, the job descriptions at most raise issues of fact, and do not, by themselves, provide a basis for dismissing Chepak’s claims."

Church sex abuse case is stopped in its tracks

One of the distinctive features of federal practice is that you cannot appeal adverse rulings right away unless the ruling ends the case for good. This stands in contrast to New York appellate practice, where anything can be appealed at any time to the Appellate Division. There are exceptions to the federal rule, and this case -- involving child abuse by the Catholic Church -- is one of them.

The case is In re Roman Catholic Diocese of Albany v. Mecure, decided on February 7. The plaintiff sues the Church in Vermont federal court over the sexual abuse he suffered in the 1980s. The Church moved to dismiss the case under Rule 12, arguing that the court in Vermont lacked jurisdiction over the Church which has minimal operations in Vermont and is primarily a New York entity.  When the court denied the motion, it set the matter down for discovery and opened up the case for mountains of discovery on confidential church files from 1975 "reflecting allegations involving sexual abuse of minors by any Diocese employees, and the details of any resulting investigations."

The Church has some good lawyers. They took up an appeal, which under normal circumstances would be dismissed from the Second Circuit for lack of appellate jurisdiction. But the federal rules do set forth emergency mandamus rules that allow the Court of Appeals in special and rare circumstances, i.e., immediate relief from the appellate court is needed to prevent irreparable damage and the appellant has a clear and indisputable right to relief. Or, in non-legal parlance, without immediate action by the Court of Appeals, the "cat is out of the bag," though that language derives from an actual case outlining these procedures.

The Second Circuit (Wesley, Winter and Chin) says that the district court truly blew it in holding that the Vermont court had personal jurisdiction over the Church, which does minimal business in Vermont and therefore cannot be sued there. (Law students are familiar with the seminal Supreme Court case on this issue, International Shoe). Generally, in order to sue a defendant in Vermont, or any other state, the incident must have taken place in Vermont or the defendant must have a real corporate presence there. Plaintiff could not have sued in New York, because by the time he brought suit, it was time-barred in that state. Without a case in the District of Vermont, there is therefore no case at all. This means that the expansive discovery that the federal court in Vermont subjected the Church would be for naught. This is not just any discovery, though. Under normal circumstances, the Court would make you endure the discovery and wait until the case is resolved before entertaining an appeal. This case is different. The Court writes,

unlike a run‐of‐the‐mill tort case, this litigation implicates significant confidentiality interests for the Diocese, its priests, and (more alarmingly) other victims (and their families) who would likely be subjected to distressing depositions, revisiting pasts that would not otherwise be revisited in a case solely against Mercure.

...

While invasiveness and unpleasantness are not reasons to deny discovery, here disclosure would likely serve no purpose. Thus, any corrective measures would only mitigate a harm that should have been, and still can be, avoided altogether.

The Court of Appeals is careful to limit the reach of this ruling. It reminds us that it grants the writ of mandamus on the totality of the circumstances; no single factor was enough to stop this case in its tracks. The Court adds, "this opinion should not be read as inviting mandamus petitions to be filed whenever a party disagrees with a district court's jurisdictional ruling."

City Human Rights Commission's procedures satisfy due process

Nearly all employment discrimination cases are filed with an administrative agency that gets first crack at the case before the plaintiff can file in federal court. Federal and state agencies take on this task. At the federal level, it's the Equal Employment Opportunity Commission. At the state level, its the New York Division of Human Rights. New York City has its own agency. In this case, the plaintiff challenges the constitutionality of the New York City Commission of Human Rights' procedures. He loses.

The case is Rosu v. The City of New York, decided on February 7. Rosu was hounded at work because of his national origin and was then fired shortly after he suffered a stroke. This forms the basis for his hostile work environment and disability discrimination claims. He filed a charge of discrimination with the New York City Commission of Human Rights, claiming this maltreatment violated the City's civil rights laws. According to plaintiff, the investigators did not really investigate his claims before dismissing his case for lack of probable cause. In his due process case against the Commission that he filed in federal court, plaintiff says the Commission's procedures "permit a reviewer to dismiss an administrative complaint for insufficient information or investigation in the absence of a hearing and without allowing complainant to cross-examine witnesses or have access to the investigative file."

The due process clause of the United States Constitution is only a few words long. It reads, "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." This brief statement has spawned thousands of lawsuits requiring the courts to decide what due process means in any conceivable context. The standards governing due process are judge-made. Judges decide what procedures are fair. This is not an easy task, but the Second Circuit (Pooler, Parker and Wesley) says "the question before us is refreshingly narrow: does the Commission on Human Rights' procedures facially satisfy the due process requirements" under Supreme Court authority? "We find that they do."

The lack of an evidentiary hearing before the Commission does not violate due process because an aggrieved plaintiff can always challenge that determination after-the-fact, by way of an Article 78 proceeding, a quick and easy state court process that requires filing a petition, affidavits and evidentiary materials for a state judge to resolve whether the Commission arbitrarily denied you a hearing. The Court of Appeals says the Article 78 process provides a fair opportunity to fully litigate your claims against the City Commission if it says you don't deserve an evidentiary hearing on the employment discrimination claims.

While the aggrieved employee has a substantial interest in vindicating his rights, the risk that the Commission's procedures will undermine those rights is minimized by the requirement that the case have merit before the Commission schedules a hearing. In other words, the Commission will give you a hearing if it finds you have a case. If you don't have case, then the lack of an evidentiary hearing will not cause you any harm, at least according to the Second Circuit. And if you really do have enough for a hearing, the Court says, the state court in the Article 78 proceeding will order the Commission to hold one.

Rosu brought his claims under the New York City Human Rights Law, by the way. You don't have to bring an administrative charge with the City Human Rights Commission to proceed against  your former employer under the City law. You must do so in order to proceed under federal law. But since the City law provides nearly the same relief as the federal law (and in some instances, more relief), if you want to bypass the administrative process altogether and your employment discrimination claim arises in New York City, you can go right into state court and proceed to discovery and a potential trial in that forum.