Monday, December 22, 2014

Here is how IDEA exhaustion works

The federal courts will defer to the expertise of state officials in certain areas, like education, which means plaintiffs must exhaust state remedies before seeking federal relief. This is particularly true when plaintiffs sue over the rights of disabled schoolchildren. This case summarizes the lay of the land.

The case is Stropkay v. Garden City Union Free School District, a summary order issued on December 3. Under the Individuals with Disabilities in Education Act (IDEA), disabled students get an IEP, or an Individualized Educational Plan that the school and the parents create to accommodate the student's learning and other disabilities. Normally, a dissatisfied family challenges the bad IEP at an administrative hearing and, if they lose at the hearing, appeal to the State Educational Department. If that fails, the parents can then sue in federal court. Courts will allow families to proceed straight to federal court without exhausting state administrative procedures in rare circumstances, like when they are challenging systemic problems with the process that the administrative process cannot remedy, or when exhausting state remedies would be futile.

Some of the claims in this case are not appropriate for federal court. The parents raise "grievances related to the education of disabled children," so they must exhaust state remedies, even if they are suing under other civil rights statutes, and not the IDEA. Since plaintiffs did not do that, the question is whether their claims are suitable for federal court. One is, the others are not.

One claim alleges that the school retaliated against plaintiffs for invoking their rights under the disability laws. Since that claim raises a matter "related to the education of disabled children," the parents had to go through the state system first. Another claim also fails because, while plaintiffs said there were systemic violations relating to the need for specific student services, "alleging some students were denied services is not sufficient to allege systemic violations and thus does not exempt plaintiffs from the need to exhaust administrative remedies."

But another claim survives the exhaustion requirement.  Plaintiffs say the district did not comply with the student's IEP requirements. Normally, if the parents don't like the IEP created by the district, they have to exhaust all state remedies. Not when the IEP is in place and the school fails to honor its terms. Under Second Circuit authority, plaintiffs can proceed straight to federal court. A fine line, to be sure.

Thursday, December 18, 2014

En banc review in Occupy Wall Street protest case

In August 2014, the Court of Appeals ruled 2-1 in favor of the Occupy Wall Street protesters who got arrested after crossing the Brooklyn Bridge. The Second Circuit rejected the City's Rule 12 motion and allowed the case to proceed to discovery. The full Court of Appeals has now voted to hear the case en banc, and the 2-1 decision is withdrawn. A new decision will issue when the full 13-judge Court hears the case on reargument.

The case is Garcia v. John Doe Officers. The en banc order was issued on December 18. Here is how I covered the case in August:

This case arises from the Occupy Wall Street movement, which sprouted in 2011 in New York City. On October 1, 2011, the protesters marched across the Brooklyn Bridge. They allege that the police allowed them to do this and even led them onto the bridge. The police initially did not prevent the protesters from walking along the roadway. While some officers eventually told the protesters to get on the sidewalk, few protesters heard this command. They were then arrested for disorderly conduct. The plaintiffs sue for false arrest.

The case is Garcia v. Doe, decided on August 21. The crux of the complaint is that "'[p]rior to terminating the march when it was mid‐way across the bridge, the police did not convey that they were going to revoke the actual and apparent permission of the march to proceed,' and that the officers therefore did not have probable cause to arrest them for disorderly conduct." The officers seek qualified immunity, arguing that "an objectively reasonable police officer would not have understood that the presence of police officers on the Bridge constituted implicit permission to the demonstrators to be on the Bridge roadway in contravention of the law." The Court of Appeals (Calabresi, Lynch and Livingston [dissenting]) disagrees, and the lawsuit can proceed.

The Supreme Court held in 1965 that "when officials grant permission to demonstrate in a certain way, then seek to revoke that permission and arrest demonstrators, they must first give 'fair warning.'” The officers try to get around this by arguing that they sanctioned the bridge march so long as the protesters remained on the sidewalk, and that once the protesters spilled into the roadway, they were fair game for arrest; without an implicit invitation to walk along the road, the protesters got what they deserved when the officers arrested them.
The two-judge majority in Garcia said the Complaint stated a cause of action and that the officers were not entitled to qualified immunity at this early stage of the case. Judge Livingston issued a thorough dissent in the case. That dissent, I am sure, will drive the City's arguments this time around. En banc review is quite rare in the Second Circuit. This case must have hit a raw nerve with someone on the Court. And, I must say, I predicted this turn of events, writing in August:

Qualified immunity continues to be a subject of great debate among judges, with many emphasizing that this immunity allows the police and other public officials to do their jobs without the fear of crippling lawsuits. This debate exposes the liberal-conservative judicial divide. I would guess this case is a good candidate for full court, or en banc, review.

Wednesday, December 17, 2014

Suicide note was in "plain view"

The Court of Appeals grants summary judgment to police officers who seized a suicide note that was in plain view after the entered the house following a 911 call. Even if the police could have handled things better, they are entitled to qualified immunity because they did not violate clearly established law.

The case is Veeder v Nutting, a summary order decided on December 15. Under the "plian view" rule, the police can take things without a warrant if the police ha a right to be there and the items are literally in plain view, i.e., laying on the kitchen table or on the dashboard. the polkice had the right to be in the Veeder home after someone called 911 because of a self-inflicted hanging. A women inside the house told the police that the manila folder she was holding contained the suicide note and that she was going to read it in front of them. "Under the circumstances, defendants had probable cause to believe that the manila folder contained suicide notes," the Court of Appeals (Cabranes, Wesley and Hall) says.

Plaintiffs brought this action because the law generally confers upon you a privacy interest in letters and other sealed packages delivered through the mail. But the Second Circuit cannot identify any clearly established case law that says "the police may not subsequently read a person's private papers, the text of which is not in plain view, that have lawfully been seized under the plain view doctrine." Since the state of the law was not clear at the time, the police get qualified immunity and plaintiffs cannot sue them for damages.

The police could have gotten a warrant, the Court of Appeals says, but that does not affect their entitlement to qualified immunity. Left unsaid in this decision is why the police wanted the note. The district court ruling suggests the police treated the home as a potential crime scene. A quick Google Scholar search turns up a worker's compensation decision relating to this case, suggesting that the suicide grew out of a work-related problem (the decedent worked for the state police). That decision reads:

Decedent had been employed as a forensic scientist for approximately 31 years by the employer. In April 2008, the forensic lab where decedent worked underwent a reaccreditation process, during the course of which an audit uncovered an inconsistency in the fiber proficiency tests that were regularly performed by decedent. An investigation into the issue was commenced by the employer and, over the course of three days, several meetings were held between decedent and his supervisors to discuss the inconsistencies in the test results. After decedent advised his supervisors that he had skipped a step in the fiber test analysis procedure and, therefore, was noncompliant in performing the test, a "nonconforming work inquiry" was initiated by the employer. Decedent subsequently stopped going to work and weeks later, on May 23, 2008, committed suicide.
A few words on qualified immunity, which bear repeating. The Constitution protects certain rights which may be enforced in court, but if the case law interpreting those provisions is not clear at the time of the violation, then the defendants cannot be sued for damages. This means that only the truly incompetent may be sued in Section 1983 cases. Public officials are presumed to know about binding case law (whether they actually do or not). When the state of the law is fuzzy, then these abstract rights get you nowhere in court.

Monday, December 15, 2014

Court of Appeals upholds huge sanctions award against plaintiff

The plaintiff alleged that the police subjected him to excessive force. The plaintiff survived a motion for summary judgment and the case went to trial. The jury found for the police officers. But the case did not end then and there. Arguing that the case was completely frivolous, the City of New York asked the trial court to order that plaintiff pay its attorneys' fees. The trial court granted that motion and the Court of Appeals affirms.

The case is Abeyta v. City of New York, a summary order decided on December 15. For you non-lawyers out there, defendants file summary judgment motions to prevent to trial from taking place. They will argue either that the plaintiff has no evidence or that the case is so one-sided in favor of the defendant that the plaintiff cannot win. The plaintiff's sworn pre-trial testimony alone may entitle him to a trial if he testifies that the police beat the hell out of him without good reason. That does not mean the plaintiff will win at trial or even that the case is not frivolous.

When this case went to trial, the jury returned a verdict for the defendant police officers. The City then moved for attorneys fees. Normally, plaintiffs who lose don't pay the defendants' attorneys fees. Otherwise, plaintiffs would be afraid to bring lawsuits in the fear that if they lose, they could pay a huge attorneys' fees judgment. But if the plaintiff brings a frivolous case, the judge can order him to pay defendants' fees. That's what happened here.

In sustaining the attorneys' fees award, the district court stated:

while it seemed at the summary judgment stage that the officer defendants could have slammed plaintiff’s head against the hood of their squad car, it became clear at trial that there was no credible evidence to support such a claim. Similarly, while it seemed at the summary judgment stage that plaintiff could have suffered life-altering brain injuries as a result of the alleged incident, it became evident at trial that plaintiff could not prove the existence of any injuries proximately caused by the alleged incident. . . .

For example, during plaintiff’s cross-examination, plaintiff conceded that he had continued playing video games, drinking, and going to strip clubs following the alleged incident, wholly undermining his allegation that as a result of the supposed incident, he was unable to work, leave his apartment for long periods of time, watch television, socialize with friends, or use a computer.
The district court therefore ordered the plaintiff to pay the City $211,747.50 in attorneys' fees. As the Court of Appeals does not like to second-guess the district courts on attorneys' fees rulings, this order stands, and plaintiff has to now pay out an enormous amount of money to the City.


Friday, December 12, 2014

No pretext, no case.

Another tutorial from the Court of Appeals tells us what it takes to win an employment discrimination case, and how hard it is to prove that the employer's reason for firing the plaintiff is a pretext.

The case is Mathew v. North Shore Long Island Jewish Health System, Inc., a summary order decided on November 13. Here is how these cases work: the plaintiff has make a prima facie, or initial, showing of discrimination. If the plaintiff was terminated from his job under circumstances creating an inference of discrimination (black plaintiff replaced by a white employee, comparable employees not fired, etc.), the employer then has to articulate a reason for the termination. To win, the plaintiff has to show the articulated reason is a pretext for discrimination. Pretext means a knowingly false reason. The courthouse graveyard is filled with cases where the plaintiff could not prove that management's reason was a pretext.

Plaintiff in this case says he was fired because he suffered from a hernia, in violation of the Family and Medical Leave Act and state law. The hospital says plaintiff falsified his time records. Plaintiff says this is a bogus reason. The Court of Appeals (Katzmann, Hall and Livingston) says No Dice. "We are decidedly not interested in the truth of the allegations against plaintiff when evaluating pretext. Instead, we are interested in what motivated the employer." Since plaintiff actually admitted to submitting inaccurate time records in a meeting with management, "even if this admission was inaccurate or incomplete, it provided the [hospital] with a sound basis to conclude that Mathew had stolen time, and thus undercuts any inference that Mathew's termination was motivated by the hernia."

Plaintiff's second argument is that he was the victim of selective enforcement. But plaintiff "has not identified any other similarly situated employees -- that is, employees who admitted submitting erroneous timesheets -- much less shown that they were treated more leniently than he was." So, no pretext here, which means no discrimination under Second Circuit authority.

Thursday, December 11, 2014

No one gets paid for security screenings at Amazon

Have I told you lately how complicated the Fair Labor Standards Act is? It basically says that employees must be paid for the work, and that some employees are eligible for overtime. But it says more than that, as shown by the many court rulings that apply the FSLA in a million different ways. This time around, the Supreme Court asks whether Amazon.com workers can get paid for the 25-minute security checks when they leave the warehouse to ensure they are not stealing anything.

The case is Integrity Staffing Solutions v. Busk, decided by the Supreme Court on December 9. This decision was written by Clarence Thomas. Before you charge the conservatives on the Court with further hostility toward the working man, bear in mind that this was a unanimous ruling. The basic facts are these: "Integrity Staffing required its employees to undergo a security screening before leaving the warehouse at the end of each day. During this screening, employees removed items such as wallets, keys, and belts from their persons and passed through metal detectors."

A word or two about employee theft. When I worked at a supermarket back in high school, there were no security cameras or security checks. One guy happily filled up a shopping cart with stuff and rolled it right out the front door. Another guy clocked in early and then went back outside to the gym to lift weights. Management has gotten smarter over the years. Security cameras are now trained on every cash register in every supermarket and big-box store in America. Employee handbooks tell you in 20 point type that you are an at-will employee who can be fired for any reason or for no reason at all. The Amazon warehouses are mammoth. These security checks are in place to ensure that employees and temp workers do not rob the place blind.

Should the employees be paid for the time they have to pass through security screening to satisfy management that they are not stealing anything? Your initial impression would be that this is compensable time, as this seems a work-related requirement and the employees are not free to leave the workplace until they comply with the security screening.

Under the law, the employees don't have to be paid for "activities which are preliminary to or postliminary to said principal activity or activities.” Do these "postliminary" screenings fall within this exception? The Court says they do. Justice Thomas explains, "An activity is ...integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities."

The employees are not paid for this. "The screenings were not the 'principal activity or activities which [the] employee is employed to perform.' Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” In addition, "The security screenings also were not 'integral and indispensable' to the employees’ duties as warehouse workers."  

Wednesday, December 10, 2014

What happens in the jury room stays in the jury room

If you try cases, you know that the X factor is the jury. They sit in judgment of the plaintiff, the defendant, the lawyers and probably the judge. We trust the jury to make the right decision, yet we know nothing about these people other than what they reveal during jury selection, which in federal court is often very little. When I talk to clients about what happens at trial, I tell them that eight strangers will decide their case. It may not be a jury of your peers. Take a good look at the next eight people you see on your way home from my office. That is your jury. The guy who works at the gas station has not read a newspaper in years. The woman ahead of you at the traffic light has a Ph.D. The jaywalker only cares about his cellphone. The crossing guard has no time for jury selection and will fake an excuse to get out of it. You get the picture.

The case is Warger v. Shauers, decided by the Supreme Court on December 9. This case examines when a juror's lies during jury selection can get you a new trial. During jury selection, the judge will ask the potential jurors questions about their backgrounds and whether they can decide the case fairly. In this traffic accident case, one juror, Whipple, said she could be fair. After the plaintiff lost at trial, the plaintiff's lawyer heard from a juror who said that Whipple told the other jurors during deliberations "about a motor vehicle collision in which her daughter was at fault for the collision and a man died,” and had “related that if her daughter had been sued, it would have ruined her life.” Whipple was the jury forewoman. If this account was true, then Whipple was not being honest at jury selection. If she mentioned her daughter at jury selection, she probably would not have been picked for the jury.

Plaintiff's lawyer got the juror to sign an affidavit describing what Whipple said during deliberations, arguing that Whipple had lied about her impartiality during jury selection, denying plaintiff a fair trial. However, under Federal Rules of Evidence 606(b), certain juror testimony regarding what occurred in a jury room is inadmissible “[d]uring an inquiry into the validity of a verdict.” This rule disallows plaintiff from seeking a new trial, a unanimous Supreme Court says.

The Court notes that "If a juror was dishonest during voir dire and an honest response would have provided a valid basis to challenge that juror for cause, the verdict must be invalidated." That language does not help plaintiff. "As enacted, Rule 606(b) prohibited the use of any evidence of juror deliberations, subject only to the express exceptions for extraneous information and outside influences." In enacting Rule 606, Congress declined to "permit[] the introduction of evidence of deliberations to show dishonesty during voir dire." Congress wanted jurors to be able to deliberate without fear that their private deliberations (which take place behind closed doors) would be exposed and picked apart. What happens in the jury room stays in the jury room.