Pro-choice statute does not apply to medical fraud case against GEICO

After the public learned that the Supreme Court was about to overturn Roe v. Wade, the seminal abortion rights decision, New York enacted a law that makes it illegal to burden the rights protected by New York law. The context was reproductive rights. This lawsuit implicates that statute, but the plaintiff loses.

The case is Clarke v. GEICO, a summary order issued on January 5. In early 2022, someone leaked the ruling in Dobbs v. Jackson Women's Health Organization, which said the Constitution does not protect the right to an abortion. Dobbs overruled Roe. New York responded by passing the Freedom from Interference with Reproductive and Endocrine Health Advocacy and Travel Exercise Act, or the FIRE HATE Act. The legislation was directed at the "risk of civil actions and criminal actions brought in courts outside the state of New York seeking to punish or impose civil liability on individuals traveling to New York" to access an abortion.

In this case, GEICO, the insurance company, brought two civil RICO actions against plaintiff, a doctor, in the Eastern District of New York, alleging that he worked with a medical equipment company to fraudulently bill for unnecessary medical equipment in no-fault insurance claims. So the RICO action involved alleged fraud in medical care. In defending the case GEICO claimed the STOP HATE Act involves "medical care" relating to reproductive or gender-affirming medical care, not unrelated medical treatment.

This is a statutory interpretation case. After reviewing this relatively recent statute, the Court of Appeals (Menashi, Robinson and Perez) holds that plaintiff cannot proceed with this case because the GEICO lawsuits "did not seek to impose liability on Clarke for the provision of medical care -- of any kind -- and therefore the lawsuits did not 'result' from the provision of medical care." This case involves GEICO's lawsuit against plaintiff over alleged false billing for payment rather than his provision for medical care. The Court reasons, "The provision of medical care was not even a but-for cause of the litigation: Clarke could have submitted false bills before he provided the related medical care—and he could have submitted false bills without providing any medical care at all. The actual cause of the litigation was his purported false billing practices rather than his provision of medical care."

Discrimination claim highlights distinction between federal law and NYC Human Rights Law

You don't see too many cases where lawyers are suing their former employers for discrimination. In this case, a lawyer sues Con Edison, claiming she was fired based on age and gender. She loses the case under federal law, but the case is reinstated under the New York City Human Rights Law so that the district court can take another look at her claim under the proper legal framework. This case highlights the differences between federal law and the New York City Human Rights Law.

The case is Goldzweig v. Con Edison, a summary order issued on January 5. The analysis on the federal claim resembles what we often see in these cases: plaintiff argues that management lied about her alleged poor job performance as justification for her termination. But the court will not second-guess negative performance reviews without some affirmative evidence of discrimination. The Court (Park, Perez and Nathan) writes, "The consistency of the viewpoint expressed about Goldzweig's performance supports Con Edison's proffered nondiscriminatory reason for terminating her." We might have a different result if the positive performance reviews turned sour for no objective reason, but that does not seem to be the case here. While plaintiff challenges the credibility of defendant's witnesses, that does not force a trial; the Court holds that "Broad, conclusory attacks on the credibility of a witness will not, by themselves, present questions of material fact." Nor does the Court find contradictions or implausibilities in defendant's justification for firing plaintiff.

On the retaliation claim, same result. Plaintiff did complain about discrimination, and she was terminated afterwards, but that sequence will get you a trial on the retaliation claim without evidence that the justification for plaintiff's termination was knowingly false. The Court says that Con Edison's "sustained, documented criticism of Goldzweig's performance is sufficient to meet its burden ... and Goldzweig has failed to demonstrate that Con Edison's proffered explanation is pretextual. "Although Goldzweig complained about how [supervisor] D'Angelo treated her, documentation of her performance deficiencies long predates these complaints." 

The City law claim is different, as the NYC Human Rights Law carries a more lenient standard for plaintiffs; the City Council did not want the stringent tests under federal law to guide City law claims. On the retaliation claim, the Court notes that the City law "takes a broader approach than Title VII and the ADEA as to what constitutes a protected activity for the purpose of a retaliation claim." While the district court said that one of plaintiff's four complaints qualified as protected activity under federal law, it did not consider whether these complaints qualified under the City law. And, while federal law applies a strict "but for" causation test in retaliation cases, that is not the case under the City law, which recognizes the more lenient "motivating factor" test. Moreover, under the City law, "a plaintiff need not prove that the reason proffered by the employer for the challenged action was actually false or entirely irrelevant to the decision to take adverse action." The authority for this is Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 127 (1st Dept. 2012). The Court adds, 

it is unclear whether the district court independently analyzed the weight accorded to different forms of evidence under New York law.  See, e.g., La Marca-Pagano v. Dr. Steven Phillips, P.C., 129 A.D.3d 918, 921 (2d Dep’t 2015) (concluding that “close temporal proximity between the plaintiff’s protected activity and the adverse employment action is sufficient to demonstrate the necessary causal nexus” for a retaliation claim); Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 25 (1st Dep’t 2014) (same); Calhoun v. Cnty. of Herkimer, 114 A.D.3d 1304, 1307 (4th Dep’t 2014) (same).

 

Substantive due process claim proceeds to trial in wrongful death case

Remember substantive due process? We learned about it in law school. It says that the Fourteenth Amendment recognizes an implied claim for a substantial rights violation even if the Constitution says nothing about it. The courts are skeptical about substantive due process claims, but people do win these claims from time to time. This is one of those cases.

The case is J.M. v. Sessions, issued on December 23. J.M. is C.B.'s mother. C.B., who was autistic and various disorders, died at the age of 34 while living at a state-run facility, Valley Ridge Center for Intensive Treatment. She says that caretakers at Valley Ridge ignored her son's pleas for help and obvious signs of heart failure, causing his death. The summary judgment record shows that C.B.'s health deteriorated quickly in his final days, but the staff did not take these symptoms seriously. There was also a cover-up, as one staffer lied about how frequently she watched over C.B. on the night of his death. 

The district court's order granting summary judgment for the state is reversed and there will be a trial in this case. The Supreme Court has held that substantive due process requires state officials to take good care of people housed in a state institution. This includes inmates and people like C.B. The leading cases in our jurisdiction on this issue are Youngberg v. Romeo, 457 U.S. 307 (1982), and Society for Good Will v. Cuomo, 737 F.3d 1239 (2d Cir. 1984). As the Court of Appeals puts it, "once a person is in the state's custody and dependent on the state for their essential needs, the state acquires a duty to provide for those needs in a manner that does not deprive that person of constitutional rights." These rights do not extend to the public at large, however, as shown by DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), one of the most hated Supreme Court rulings all time, holding that the police could not be sued for failing to protect a boy who was severely beaten by his father after the family had repeatedly reported the father's abuse to county social workers. Without a "special relationship" between the victim and the police, there is no such claim.

This is not a DeShaney case but a Youngberg case, the Second Circuit (Kahn, Parker and Carney) holds. Society for Good Will was decided more than 40 years ago, but the Second Circuit uses this case to reiterate its holding "that anyone in a state institution has a right to safe conditions regardless of whether they are voluntary or involuntary residents." Good Will remains good law post-DeShaney. We have an extended discussion on this topic as the Court of Appeals reviews substantive due process cases over the last 35 years to see if the Supreme Court's analysis in DeShaney cuts Good Will off at the knees. It does not. That means J.M.'s case against the state will proceed to trial.

Circuit applies "futility" rule in student disability cases

The general rule is that if you want to sue a school district or the State of New York over the deprivation of your disabled child's rights in the educational setting, you have to initially file an administrative complaint and give local and then state authorities an opportunity to address the problem. Without the exhaustion of these administrative remedies, the case is dismissed for lack of subject matter jurisdiction. There is an exception: we call it "futility."

The case is J.M. v. New York City Dept. of Education, issued on December 9. Plaintiffs argue that the City violated the Individuals with Disabilities in Education Act in maintaining a policy of discontinuing the services of disabled students before their 22nd birthday. The Second Circuit held in 2021 that the IDEA requires school districts to provide educational services to such students until they turn 22. That case originated in Connecticut. The claim here is that New York City is not following that mandate. Parallel state court litigation on this issue is raging in the Appellate Division and the New York Court of Appeals, but the Second Circuit decides this issue on its own without binding guidance from the state courts.

The Second Circuit holds that the 22-year-old policy applies in New York. What it all means for purposes of administrative exhaustion is that, since the plaintiffs are challenging a statewide policy, any administrative claim that would ultimately wind up at the State Department of Education would be futile. Why? Because futility doctrine recognizes that the state agency that is maintaining an unlawful policy is not likely to change its mind through an administrative proceeding. While the normal course of action is to bring the administrative action through the local school district and then the State Education Department when the district denies a disabled student their proper educational services, a structural challenge to state policy, like this one, is a different ballgame altogether.

The "policy or practice" futility exception to the "exhaustion of administrative remedies" rule is alive and well and applies to this case. If you handle IDEA cases and wish to proceed in court without exhausting the administrative remedies, this case is a must-read, as the Court of Appeals (Cabranes, Chin and Robinson) offers a thorough discussion on the history of the IDEA and the futility doctrine. The end result is this case returns to the district court docket to determine whether the State of New York violated the rights of the student-plaintiffs in this case.

No due process claim for inmate who claims his disciplinary hearing was rigged against him

Inmates have constitutional rights, but their constitutional rights are fewer once they enter the prison, which has security concerns to balance out the right of due process and other protections. This inmate learns that the hard way.

The case is Baltas v. Jones, issued on December 15. Plaintiff says that the jailers began issuing false disciplinary complaints against him, landing him in the restrictive housing unit (RHU). When he was about to be released from RHU, a Captain emailed two other correction officers asking what are we going to do about this inmate, as he may be leaving RHU the next day. One CO, Jones, said they did not want him in the G-unit because there were too many inmates placed there. Jones then sent an email to other officers asking that plaintiff be processed for CD, which is restrictive housing for inmates who receive too many disciplinary notices and pose a safety risk in the jail. A CD hearing ensued and the hearing officer found that plaintiff had 64 different infractions on his record. Plaintiff wound up in CD.

This due process claim asserts that the hearing result was planned in advance, in violation of due process. He claims that a jail official admitted during the hearing that he had been ordered in advance to recommend plaintiff for CD. Sounds like a great due process case, right? A pre-ordained result means the plaintiff did not get a fair shake at the hearing.

Plaintiff loses the case. Yes, he had due process rights. But the Prison Litigation Reform Act, enacted in the mid-1990s, requires inmates to file an internal grievance prior to any lawsuit. This gives the jail a chance to correct the problem, or at least investigate the issue so it can create a record that might prove useful in court. In his grievances at the time of the hearing, plaintiff did assert a due process violation. He wrote that the outcome of the hearing was a foregone conclusion. But the Court of Appeals (Jacobs and Kearse) holds that plaintiff's grievance was not specific enough: he failed to assert that the outcome of the hearing was predetermined in the literal sense that the hearing officer was powerless to reach any other outcome beyond confinement to CD. He did not claim in the grievance what he claimed in federal court: that the hearing officer was simply doing what his boss told him to do. Plaintiff should have asserted in the grievance that the hearing officer was a pawn. This ruling imposes a strict specificity requirement guiding inmate grievances.  

Judge Lohier dissents, writing that the court has recognized a liberal grievance pleading standard under the PLRA, allowing for unsophisticated inmates to process their claims in-house before filing suit in court. Lohier finds the grievance here was enough to alert prison officials that the hearing denied him due process because he did not receive proper notice prior to the hearing, the hearing officer introduced false information during the hearing, and officers orchestrated the disciplinary allegations in advance to transfer him out of the facility or placement on restricted status. "Fairly read, Baltas's allegations at the very least suggest a broader, structural claim that 'Calderon was powerless to reach any other outcome' and that prison officials had conspired to create a rigged hearing without meaningful procedural protections." 

Conservative student group loses First Amendment case against SUNY Buffalo

The University at Buffalo adopted a plan after a controversial organization spoke on campus, the Young Americans for Freedom. The campus YAF chapter was part of a nationwide organization. The student government adopted a National Affiliation Ban, which derecognized clubs that remained "a chapter of or otherwise part of any outside organization." This meant the YAF was no longer recognized on campus. YAF then sued SUNY Buffalo.

The case is University at Buffalo Young Americans for Freedom v. University at Buffalo Student Organization, a summary order issued on Nov. 3. YAF brought this case under the First Amendment. But the students on both sides of the caption learned something about the First Amendment: the language of the First Amendment may speak in absolutes but its application is among the most complicated areas of constitutional law, as the courts have to balance competing interests: the interest of the speaker and the interest of the government.

YAF loses the case because the injury of derecognition, by itself, is not a First Amendment violation. The Supreme Court said that in 1972 in Healy v. James. They did not suffer the loss of reserving table space at the Student Union Building or classroom space for its weekly meetings. YAF did not seek out these opportunities, and no one denied them to YAF. There is no objective evidence that YAF was chilled from speaking on campus. That means there is no injury in fact and therefore no standing to sue.

YAF also loses because a university forum for student organizations is a "limited public form,"which grants you fewer rights than a full public forum where the government cannot discriminate based on the content of your speech. The Supreme Court in 2010 rejected a similar claim in Christian Legal Society v. Martinez. In such cases, the plaintiff can only win if the government discriminates on viewpoint.

But the Second Circuit (Parker, Carney and Nardini) says there is no viewpoint discrimination here. While YAF claims the new rules give the student government broad discretion to ban certain groups, the new rules are reasonable and therefore consistent with the First Amendment. SUNY argues that the Legal Status Ban limits the Student Association's legal liability and protects Student Association funds. It also prevents clubs from agreeing to predatory contracts, holding events without insurance, or depleting student government funds by virtue of a club's negligence. 

Ministerial exception does not bar plaintiffs from suing their religious employers for a hostile work environment

 

The Appellate Division First Department has ruled for the first time in New York that the ministerial exception -- which bars employees working for religious institutions from suing for certain forms of employment discrimination -- does not bar these employees from suing their employers for a hostile work environment, including sexual, race and age harassment. 

The case is Boliak v. Reilly, issued on December 18. Plaintiffs worked for a religious high school, where the principal, Father Michael Reilly, subjected them to endless racist, sexist, ageist and other shocking comments that you'd never expect from a religious figure. The plaintiffs are two retired NYPD detectives and a Social Studies teacher. The case was dismissed in State Supreme Court on ministerial exception grounds. That holding is reversed. I argued the appeal. The law firm of Alterman & Boop filed the case and handled the extensive discovery.  

The ministerial exception is a judge-made doctrine, rooted in the First Amendment's religious clauses, that protects religious employers from judicial review of certain personnel decisions. The U.S. Supreme Court has not ruled on whether this exception applies to hostile work environment claims, an issue on which courts around the country are split. Essentially, the First Department says there is no religious component to the racial and sexual harassment that typically comprises a hostile work environment. While courts will not entertain wrongful discharge or demotion claims against religious employers on the basis that they will not interfere with personnel decisions involving "ministers," or employees who have religious duties, that logic does not apply to hostile work environment claims, where the employer is subjecting employees to verbal abuse that has no religious component. 

 

Key points from the decision:

1. "Although the ministerial exception was created to protect churches from state interference in their decisions to employ and supervise ministerial employees, it was not intended as a shield from all types of workplace conduct."

2. Courts around the country are divided on the applicability of the ministerial exception to hostile work environment claims that do not involve concrete personnel actions.

3. "In the absence of controlling case law, we follow the 9th Circuit’s approach and find that the ministerial exception should not be extended to apply to conduct such as unlawful harassment simply because such conduct is perpetrated by a religious employer. As the 9th Circuit observed, there is no First Amendment reason to permit the ministerial exception to shield a religious institution from its 'obligation to protect its employees from harassment when extending such protection would not contravene the Church's doctrinal prerogatives or trench upon its protected ministerial decisions.'”

4. "Plaintiffs are correct that there is no religious justification for Father Reilly’s appalling conduct, and analyzing their hostile work environment claims would not require the Court to improperly interfere with religious doctrine or defendants’ personnel decisions. Accordingly, plaintiffs’ hostile work environment claims should not have been dismissed on the basis of the ministerial exception."