Pro se's Title VII complaint is reinstated

The Court of Appeals has reinstated a pro se plaintiff's discrimination lawsuit. This case is yet another in a recent string of pro se victories in the Second Circuit.

The case is Robinson v. Goulet, a summary order decided on May 17. Plaintiff alleges disparate treatment because of her race and gender. The complaint alleges that she was yelled at because she is a black female and that her work hours were reduced. She was also prohibited from working overtime. White male colleagues did not face similar treatment. The Second Circuit (Walker, Sack and Wesley) says that it is plausible under Rule 12 that plaintiff suffered disparate treatment. The claim is remanded to the district court for discovery.

The Court of Appeals also says that plaintiff should allowed to amend the complaint to plead a retaliation claim. Plaintiff says that her boss yelled and cursed at her when she complained that he was giving white employees favorable treatment. And when she was assigned to work with a co-worker who made sexual advances, her supervisors did not follow up with her and instead accused her of being lazy. The Court says:

Reading her allegations generously, if given the opportunity to amend her complaint, Robinson may be able to plead sufficient facts to demonstrate that she had a reasonable, good-faith belief that Goulet’s and her other co-worker’s actions were unlawful under Title VII, that her employer knew her complaints were about unlawful activity (if she in fact complained of disparate treatment or sexual harassment), that she suffered adverse employment actions, and that these adverse actions were motivated at least in part by retaliatory animus.

Wrong place, wrong time, but no case

Some people sleeping in an apartment were arrested on drug-related charges after the police found multi-colored pills in plastic bags on the kitchen table. It looked like drug dealers were living here, so the plaintiffs were held for constructive possession. They sue for false arrest. The officers win the case on qualified immunity.

The case is Carabello v. City of New York, a summary order decided on May 14. If drugs are in plain sight, the police may presume that those living in the apartment are complicit in the offense. The officers were in the apartment because of a confirmed presence of marijuana plants at the apartment on a prior occasion, and once inside the place, they found heroin in the bedroom. So it was reasonable for the officers to think that the pills were MDMA. After all, there were drugs all over the place to start with.

The Court of Appeals (Sack, Wesley and Carney) agrees that the officers acted reasonable under the circumstances in detaining the plaintiffs. It is possible that the plaintiffs were in the wrong place at the wrong time. Maybe they were just hanging around when the police showed up and saw pills on the table. My guess is that the charges against the plaintiffs were dropped, which is what allowed them to bring this lawsuit (the guilty cannot sue for false arrest). But false arrest case law does not entitle you to damages when the police make a mistake. Under Section 1983, the police are allowed to make a mistake in good faith. The Court sums it up like this:

The undisputed facts establish that plaintiffs were sleeping in a small apartment in which police found drugs on more than one occasion, including at the time of the arrest, and that defendants found suspected MDMA in a common area of that apartment. These circumstances were arguably sufficient to warrant a prudent person to believe that the plaintiffs were “had knowledge of, and exercised dominion and control over,” the suspected contraband.

Employer can retaliate against employee for reporting payroll fraud to Board of Education

If you are a public employee who intends to speak out on a matter of importance, you should speak with an attorney first. You may think you cannot be fired for "doing the right thing." But the law may not protect you, at least not the First Amendment. Consider this free legal advice.

The case is Williams v. Board of Education, a summary order decided on June 4. The plaintiff worked as a clerk at the Riverside Institute of Technology. The school principal told her to alter the payroll documentation to show that substitute teachers were performing special education duties. Plaintiff objected to this because she thought the principal was misappropriating special education money. She reported this attempted malfeasance to her supervisor, her union, the board of education and the City of Buffalo. As a consequence of this whistleblowing, the principal treated her like garbage in the form of various acts of retaliation. She sues under the First Amendment.

What happens when the clerk reports payroll fraud to proper authorities? Can she sue over the retaliation? You have to ask what were her job duties. The answer to that question tells us whether plaintiff engaged in  protected speech. As the district court noted in granting defendants' motion for summary judgment, "plaintiff was responsible for processing and maintaining the payroll documents at Riverside. She objected to certain payroll reporting practices at the school and made her concerns known through internal channels available to her as an employee of the Buffalo Board of Education."

Plaintiff loses the case. Her speech was not protected under the First Amendment. The Supreme Court held in Garcetti v. Ceballos (2006) that the First Amendment does not protect public employee speech if the speech was part of her official job duties. If the speech grows out of the plaintiff's duties, then she is not speaking as a citizen but as an at-will employee. The Second Circuit (Pooler, Livingston and Goldberg [D.J.]) sums it up: "the speech for which Williams claims she was retaliated against owed its existence to her payroll responsibilities as the school clerk. Regardless of her internal motivations, Williams's speech was clearly undertaken in the course of performing her work completing payroll for the school."

Now I have seen it all: witness had a financial stake in the trial's outcome

This is a civil rights claim alleging that the plaintiff was rounded up by the police and taken to a mental health facility against his will. He sued the police for false arrest and excessive force, and the jury awarded him a lot of money: $625,000, which the judge reduced post-trial to $450,000. But the plaintiff withheld from the defendants a shocking secret that could have blown the trial apart. For that reason, the verdict is gone.

The case is Thomas v. City of New York, 09 Civ. 3162 (ALC), 2013 U.S. Dist. LEXIS 78510 (S.D.N.Y. 2013), a Southern District of New York ruling issued on June 4. After the trial ended, the City filed an appeal. That appeal never happened because the City discovered that the plaintiff had engaged in shenanigans that tainted the verdict and warranted a new trial.

Here is what happened. The plaintiff's girlfriend, Marrow, was a witness to this he-said she-said case that turned on witness credibility. Prior to trial, the plaintiff and his girlfriend entered into a contract that promised Marrow 20 percent of the recovery in the event that Thomas won at trial. If Thomas lost at trial, Marrow would pay out 10 percent of the defendants' legal fees. So Marrow had a real financial stake in the outcome of the trial. No one knew about this contract, which is prohibited under New York law, and when Marrow as cross-examined at trial about whether she had a financial interest in the case, she did not tell the jury about the contract, and she was cagey about whether she would benefit from a Thomas trial victory. As Marrow withheld from the jury her true financial stake in the case, Thomas sat there like a lump in the knowledge that Marrow was not playing it straight with the court.

The contract became known to the world when Thomas decided against honoring the contract. Marrow sued Thomas in state court to enforce the contract. The district court ruling provides the transcript from State Supreme Court's colloquy with Thomas about the contract. Thomas got cute about the agreement (he said that Marrow forced him to sign it or she would not testify at trial) before he finally acknowledged the agreement's existence.

The City told the federal judge about the contract and move for a new trial. That motion is granted. This is the kind of serious misconduct that warrants a new trial. Thomas had a duty to disclose the existence of this agreement to the City. It also goes without saying that the jury could have found for the City had it known about the contract. It boiled down to Marrow's credibility, and the City would have argued that her testimony was bought and paid for. The City's lawyers would have destroyed Marrow and Thomas on cross-examination about this illicit contract. Judge Carter writes, "Marrow and Thomas agreed to a contingency arrangement in every sense of the word -- she would benefit only if Thomas was successful and was financial liable if he lost. Her testimony was high stakes for both Thomas's case and her own wallet."

Quitting post-discrimination job because of lengthy commute may still get you back pay damages

A Title VII plaintiff who sues for wrongful discharge has a duty to mitigate damages. That means he has to make reasonable efforts to find comparable work in order to qualify for back pay from the employer that discriminated against him. The policy reason for this is simple: you cannot just sit around and wait to win your lawsuit.

The case Bergerson v. New York State Office of Mental Health, a summary order decided on May 9. The jury found that the Office of Mental Health discriminated against Bergerson. The district court denied her back pay, reasoning that, while plaintiff found a job after leaving OMH, she quit that job for personal reasons. Quitting that job was unreasonable and thus deprived her of any back pay from OMH. The Court of Appeals (Walker, Chin and Restaini [D.J.]) disagrees.

After plaintiff was wrongfully discharged from OMH, she found another position with the St. Lawrence Psychiatric Center (SLPC). But she later resigned that position because the daily commute was too burdensome. The Court of Appeals says that "it took Bergerson two and a half to three hours to travel to SLPC from her home in Rome, New York. Such an onerous commute undoubtedly constitutes unreasonable working conditions, and Bergerson was not obligated to mitigate damages by pursuing or continuing employment located such an unreasonable distance from her home." Quitting the SLPC job did not, by itself, constitute a failure to mitigate damages. The Second Circuit cites a district court case and cases from around the country in reaching this holding. So this is probably the first time this Court has said this.

However, plaintiff still did not mitigate damages, for other reasons. After she left SLPC, plaintiff did not make reasonable efforts to find comparable employment. She took on lesser positions with a bus company and a part-time job with a School for the Deaf. So while this decision provides guidance on when a Title VII plaintiff may quit a subsequent job and still seek back pay, for other reasons, Bergerson still gets nothing in the way of back pay.

Court rejects attempt to "twist" the facts into direct evidence

The Court of Appeals hears a lot of employment discrimination appeals. Some are weak and some are strong. This case looks like one of the weak ones, reminding us that direct evidence is often elusive and not yours for the asking.

The case is Fischer v. City of New York, a summary order decided on May 17. Fischer was a probationary secretary for a high school in Queens. She was fired in June 2007. She says she was fired because she was white and Jewish, and that she has direct evidence to prove it. If you have direct evidence, the court can dispense with the well-known McDonnell-Douglas burden-shifting model that helps the court decide if circumstantial evidence is enough to prove your case. But to win the case on direct evidence, you need ... direct evidence.

Plaintiff says she has direct evidence because the school principal, Alfred, testified that race "had nothing to do with" her decisions to reprimand or not reprimand employees and that, by way of example, she has "reprimanded Caucasion teachers and Asian teachers. It doesn't have anything to do with it."As the Court of Appeals (Cabranes, Parker and Lohier) puts it. "Fischer attempts to twist this denial that race enters into Alfred's decision-making into an admission that Alfred only disciplines white and Asian teachers. We are not convinced. Neither this statement, nor any other we have found in the record, plausibly provides direct evidence" in support of plaintiff's claim.

When it comes to direct evidence, you know it when you see it. It can take the form of a manager saying outright that he does not promote women. But the Court of Appeals has said that even without a "smoking gun," the plaintiff can get the judge to charge the jury on the more lenient direct evidence model if the plaintiff has "a thick cloud of smoke, which is certainly enough to require [defendant] to 'convince the factfinder that, despite the smoke, there is no fire.'" Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir. 1992).

A good summary of where we stand on this issue is found in a recent Court of Appeals ruling,
Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149-150 (2d Cir. 2010):

[T]he more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination. . . . The more a remark evinces a discriminatory state of mind, and the closer the remark's relation to the allegedly discriminatory behavior, the more probative that remark will be.

The district courts in this circuit have developed a standardized approach for applying these concepts to individual cases. In determining whether a remark is probative, they have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). While we caution that none of these factors should be regarded as dispositive, we think this framework will often provide a useful approach to the admission or exclusion of remarks not directly related to the adverse action against the plaintiff, and employ it here.

A ticket to the courthouse gets the plaintiff no money

A federal judge in White Plains used to say that a criminal court acquittal (or dropped charges) gave you a ticket to the federal courthouse. He was technically right. You could then argue that you were falsely arrested. But many of these false arrest cases are killed off on a motion for summary judgment. This case is one of them.

The case is Norwood v. Mason, a summary order decided on May 14. Two guys broke into the Driscoll home in the City of Troy. The Driscolls both told the police that the robbers were Hispanic, one short and slender, the other taller and heavier with a goatee. The Driscolls also identified Norwood as the taller robber. Norwood is African-American, not Hispanic. In getting the arrest warrant for Norwood, Mason (a police officer) did not mention that the Driscolls said that the robbers were Hispanic. A grand jury indicted Norwood, but that indictment got chucked because of bad jury instructions. Someone else was eventually arrested in connection with the robbery, and Norwood got his ticket the courthouse.

Not every injustice gets you a jury trial, or money damages. Norwood argued that Mason had no probable cause because his arrest warrant affidavit did not mention that the Driscolls said he was Hispanic. But the Second Circuit (Winter, Calabresi and Lynch) says that is not enough to say that Mason lacked probable cause. "While a prudent magistrate with access to both sets of depositions could have had doubts about the accuracy of this identification, we cannot say that such doubts would have been sufficient to negate probable cause," especially since courts hold that a photo identification provides probable cause to arrest that person, "even where the identification may not be 100 percent reliable."

The photo identification was not bad, the Court says. Several individuals in the array looked like Norwood, and nothing about Norwood stood out from the others. Mason did not even compile the photo array. And other than his ethnicity, "Norwood's appearance approximates the Driscolls' description of the taller robber in every other significant way, including height, age, weight, and facial hair." So, while this case is a real bummer for Norwood, who was dragged through the hell-hole and back on a criminal charge that lacked merit, he cannot sue the police officer for false arrest.