Oral argument does make a difference!

Many appellate courts do not bother with oral argument these days, preferring to take the case on submission. But the Second Circuit still hears argument in most cases, and one listen to the oral argument audio confirms that these proceedings are quite lively. But does oral argument really make a difference? By the time the lawyers step to the podium, the court has already reviewed the briefs and the record, and it probably has a sense of where it wants to go in the case. But sometimes the lawyers say something at argument that makes a difference.

The case is Allen v. City of New York, a summary order decided on June 13. Plaintiff alleges he was denied a promotion and suffered retaliation because of his race and national origin. The district court dismissed the case on summary judgment, reasoning that plaintiff was not qualified for his position and there was no evidence of discriminatory intent.

Plaintiff wanted the Supervisor Watershed Maintenance I position. Whatever the district court had concluded to the contrary, the Chief of Eastern Operations for the Department of Environmental Protection said he was in fact qualified for the position. Plaintiff's affidavit on the summary judgment motion refuted management's claim that plaintiff had withdrawn his application for the position. So we have a fact issue for trial on the retaliation claim.

Here is where the oral argument admissions kick in. A coworker testified at deposition that the Acting Chief of Operations told this coworker that plaintiff had been discriminated against. While the district court said this testimony was hearsay, at oral argument on appeal, defendant's lawyer conceded that the Chief's statement to the coworker was not hearsay but was instead an admission. That is because a high-ranking supervisor made the statement. Moreover, the Court of Appeals (Raggi, Lohier Droney) says, "a reasonable jury could find that such a statement from one DEP supervisor to another was not speculation but a communication about an important employment matters within the scope of his agency." The Court cites Walsh v. NYC Housing Auth., 828 F.3d 70 (2d Cir. 2016), for this proposition. Oral argument also got another admission from the City's lawyer: that no admissible evidence shows that the person chosen for the position over plaintiff was more qualified than plaintiff.

I rarely see this in Second Circuit opinions. Most decisions make no reference to oral argument at all. Maybe this is one reason the Court still hears argument. A few years ago, the Court announced that it would decide sua sponte that certain cases would be taken on submission even if the parties wanted argument. But in practice, most cases get argued, including pro se cases where the plaintiff does not know the law and makes an emotional plea to the judge who listen silently.

Are there other reasons why the Second Circuit likes oral argument? Maybe it's the beautiful courtroom at the United States courthouse. The 17th floor courtroom was recently refurbished and looks like an appellate courtroom right out of central casting. On some days, the Court assigns two different 3-judge panels to hear cases. The second panel sits in the 19th floor courtroom, which is an almost exact replicate of the 17th floor courtroom, except that the wood is a little darker. Maybe the Court wants us to experience these beautiful rooms. What's the point of having a beautiful courtroom if no one sees it?

Another reason for oral arguments in most cases is that the Court may want continued human interaction. Appellate judges spend most of their time reading briefs, pouring through the record on appeal, writing decisions and sharing them with their colleagues on the bench. All of this work is done in private chambers. Judges are not allowed to engage in political activity and probably watch what they do in the outside world, always endeavoring to maintain the appearance of neutrality. While district court judges interact with lawyers on a regular basis -- at pretrial conferences and at trial -- appellate judges only get to interact with lawyers at oral argument.  

Pretext and sexist comment entitles City law plaintiff to a trial

Federal court is not the only option for filing civil rights cases. Nor must plaintiffs file their claims under federal law. The New York City Human Rights Law also provides remedies for civil rights remedies, and the City law is not toothless. It directs courts to analyze City law claims separately from federal claims. The City law also directs courts to liberally apply the City law, which means plaintiffs sometimes win under the City law but lose under federal law.

The case is Barone v. Emmis Communications Corp., an Appellate Division First Department case decided on June 13. This City law claim alleges that plaintiff was fired because of her gender. The decision is brief and does not tell us much, but here is what we know:

While defendant said it fired plaintiff over her management deficiencies and insubordination, plaintiff put forward evidence of pretext in the form of evidence that her termination "represented a drastic shift from the favorable performance review which she received only three weeks earlier." What is more, she was on vacation for nearly a week of that three-week time period. So how badly could her performance have been right before her termination? The First Department states, "Nothing in the record explains why any defects in plaintiff's management style, identified in her otherwise favorable performance review, suddenly warranted her termination."

Although the appellate ruling does not mention this, the lower court decision found that plaintiff cannot win because a female supervisor was angry over plaintiff's romantic choices. The lower court also applied the same-actor inference in finding it is less likely that the person who hired a woman would fire that employee because of her gender. 

I don't how a claim like this would fare under federal law before a federal judge. Some judges will not assume that an unfair termination represents evidence of discriminatory intent. Particularly in federal courts, the plaintiffs cannot win without "pretext plus" evidence, which means a false reason and some other evidence suggesting the termination was racially motivated or caused by the plaintiff's gender.

The evidence of pretext may have been enough for plaintiff to repel the summary judgment motion under the City law. But the decision closes out with a paragraph suggesting that a female supervisor made a sexist comment that sheds light on defendant's motives in firing plaintiff. The supervisor told plaintiff that she lacked "emotional intelligence and empathy toward others." This purportedly highlighted shortcomings in plaintiff's ability to manage her subordinates. A comment like this may or may not entitle the plaintiff to a trial under federal law. While the lower court said these were merely stray remarks that shed no light on anything, that's now how the First Department sees it, and the case is remanded.

Supreme Court further narrows the remedies under Bivens in 9/11 detention case

If you want to sue state officials or state employees for constitutional violations, you can do so under 42 U.S.C. section 1983. But there is no Section 1983 when you want to sue federal officials. Instead, you have a Bivens action, named after a 1971 Supreme Court case that said you can sue federal officials under the Constitution, which recognizes an implied cause of action for those claims. Yet, Bivens actions are rare, as the courts are reluctant to expand Bivens liability in various contexts. That trend continues in this case in which 9/11 detainees want to sue federal officials, including former Attorney General Ashcroft.

The case is Ziglar v. Abbasi, a Supreme Court case issued on June 19. This case reverses a decision of the Second Circuit. There is no majority opinion here. Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch did not participate because he was not on the Court when the case was argued. Justice Breyer dissents.

The plaintiffs -- foreign nationals -- were rounded up in the aftermath of 9/11 and claims they were placed in inhumane conditions of confinement. The Court summarizes the allegations:

The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in “‘tiny cells for over 23 hours a day.’” Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—anytime they were moved, as well as at random in their cells.

Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of “physical and verbal abuse.” Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.

Had plaintiffs sued state officials for these civil rights violations, the case would be allowed to proceed unless the defendants could somehow invoke qualified immunity. Section 1983 claims do not have built-in prohibitions against cases like this. But Bivens does have those prohibitions, as the Supreme Court reminds us each time it takes up another Bivens action, noting that the Court has only twice since 1971 allowed anyone to sue a federal official for such a claim: once in 1979 when someone was able to sue a congressman for sex discrimination and once in 1980 when a prisoner's estate was able to sue federal jailers for failing to treat his asthma. 1979 and 1980 were a long time ago, with different Supreme Court justices who -- let's face it -- were less hostile to the expansion of civil rights. Since that time, the Supreme Court has closed the door even further on Bivens claims, noting that it is a "disfavored" judicial remedy.

One rationale for narrowing the possibilities under Bivens, the Court says, is respect for the separation of powers. Congress is in the best position to decide who can sue federal officials. Moreover, the Court has long held that "a Bivens remedy will not be available if there are 'special factors counselling hesitation in the absence of affirmative action by Congress."

In this case, the Court will not touch the plaintiffs' claims under Bivens. Not only is a Bivens action not "a proper vehicle for altering an entity's policy," but this case would intrude on Executive Branch decisionmaking in the realm of national security, normally a matter left to Congress, not the courts. In the end, the plaintiffs have no remedy. In theory Congress can do something about their ill-treatment, but it's been 16 years since the plaintiffs were rounded up and Congress has been silent on the matter, the Court notes.

Commentary about this case says the Court has further clamped down on Bivens remedies. I agree with that assessment. Justice Kennedy's majority opinion repeatedly notes how rare Bivens actions are, and how courts remain reluctant to expand remedies under that cause of action. This case emphasizes separation of powers principles, further allowing the Court to distance itself from expanding remedies under Bivens. If you want to bring a civil rights action against a government official, first make sure that your life is in the hands of a state or local employee, and not the federal government.

2d Circuit provides guidance on Iqbal in Title IX retaliation case

The Court of Appeals has reinstated a Title IX case against the University of Rochester, which allegedly retaliated against a music student who rebuffed his professor's sexual advances. The decision provides some much-needed guidance on how to apply the Supreme Court's Iqbal test, which governs motions to dismiss under Rule 12.

The case is Irrea v. Humphreys, decided on June 15. Irrea was the music student at the prestigious Eastman School of Music at the University of Rochester. Humphreys made various unwanted sexual advances toward Irrea. When Irrea rejected those advances, Humphreys gave him a failing grade for an important piano recital. This failing grade was unusual for plaintiff, who had never previously failed a solo recital in his 27 years playing piano. Humphreys told Irrea that he would never get a university professor job and threatened to "make his life a living hell" if he reported the sexual harassment. As it happened, Irrea was unable to find work or even get an interview at any of the 28 colleges and universities to which he applied, which is "extraordinarily rare [and unheard of] for an Eastman graduate." Plaintiff says this was because Humphreys gave him negative references in retaliation for rejecting his sexual advances.The district court dismissed the case under Rule 12. The Second Circuit (Newman, Lynch and Cabranes) brings it back.

In 2009, the Supreme Court discovered for the first time that the Federal Rules of Civil Procedure contain a plausibility requirement for resolving motions to dismiss under Rule 12. It was there the whole time (the rules were drafted in 1937), but no one had ever noticed it before. Under Iqbal, it is not enough to plead facts that give rise to a possible case. The facts must give rise to a plausible case, a higher burden. Determining what is plausible is still something of a roll of the dice. You know plausibility when you see it. But since each judge has his or her own background and personal experience, what may be plausible to Judge McCartney may not be plausible to Judge Lennon. Ultimately, it's all about the context of the case and "common sense," as the Supreme Court said in Iqbal. Writing for the majority in the Irrera case, Judge Newman notes that Iqbal arose in the context of a 9/11 case. But, Judge Newman notes, "even in that context, four justices of the Supreme Court deemed the allegations sufficient to meet the plausibility standard, but five justices did not." This a judicious way of saying that plausibility is in the eye of the beholder. Because, let's face it, if four Supreme Court Justices think a claim is plausible, then it probably is, even if their five colleagues don't think so.

In this case, the context of plaintiff's allegations give rise to a plausible case. The Second Circuit notes that we are talking about the plaintiff's quest for a teaching position after graduating from one of the most prestigious music schools in the country. "Although it is not impossible that all twenty-eight schools to which he applied for open teaching positions deemed his credentials insufficient to warrant an interview, it is plausible that these schools received negative references from the chairman of Eastman's piano department, who had been Irrera's teacher," particularly since this teacher threatened to make plaintiff's life a "living hell" if he complained about the sexual harassment. It is also plausible that schools to which plaintiff had applied would have called Humphreys (the department chair) for a reference.

This is not to say that plaintiff has a slam-dunk. But the Court of Appeals relies on "common experience" in determining that the case can proceed to discovery. The Court states:

Although Irrera’s complaint makes no allegation that he is aware of a negative reference sent to any particular school, common experience indicates that schools and colleges rarely, if ever, disclose the content of the references they receive, in the absence of court-ordered discovery. Although some of these circumstances occurred outside the applicable limitations period, as we concluded in our summary order, they are nonetheless relevant to Irrera’s timely claim of retaliation, and they persuade us that that claim is plausible and that dismissal at the pleading stage was error

Recording devices OK at Whole Paycheck

Did you know that some people call Whole Foods "Whole Paycheck"? I'm just throwing that out there. Putting that aside, Whole Foods has failed in its efforts to prevent employees from using recording devices at work. The Court of Appeals finds that the National Labor Relations Board was correct in holding that the no-recording rule may chill union rights.

The case is Whole Foods Market Group v. NLRB, a summary order decided on June 1. The Second Circuit ruling is not clear on this, but Whole Foods apparently told its workers they cannot record anything at work. Under the National Labor Relations Act, it is an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights under the Act. The ultimate question is whether the rules "would reasonably tend to chill employees in the exercise of" their rights. It is even illegal if employees would reasonably construe the employer's rule to prohibit protected activity.

The Court of Appeals (Hall, Chin and Hall [D.J.]) says the NLRB was right to find that, in some instances, recording may be protected union activity. The NLRB also reasonably found that, "because Whole Foods' no-recording policies prohibited all recording without management approval, 'employees would reasonably construe the language to prohibit' recording" under the Act. While Whole Foods argued that the rule was intended to promote employee communication in the workplace, "the Board reasonably concluded that the policies' overbroad language could 'chill' an employee's rights" under the Act "because the policies as written are not limited to controlling those activities in which employees are not acting in concert."

In a footnote, the Court of Appeals notes that some no-recording policies may be legal. The footnote reads in part:

It should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the Act. Whole Foods’ interests in maintaining such policies can be accommodated simply by their narrowing the policies’ scope. See Flagstaff Med. Ctr., Inc., 357 N.L.R.B. 659, 659–60, 683 (2011) (holding that no-photography policy was lawful where hospital demonstrated patient privacy interest); Target Corp., 359 N.L.R.B. No. 103, slip op. at 2–3 (Apr. 26, 2013) (holding that reporting policy of unknown visitors in parking lot was lawful where rule was an employee safety policy).

Here is the correct procedure for amending the complaint in the face of a Rule 12 motion

When the plaintiff files a federal lawsuit and the defendant moves to dismiss the complaint, what is the plaintiff's obligation in filing a motion to amend the complaint to avoid outright dismissal? There is an answer to that question, but the district court in this case overlooked it.

The case is Cresci v. Mohawk Valley Community College, a summary order decided on June 2. Plaintiff is a lawyer who claims the college denied him employment in violation of the First Amendment and USSERA, which prohibits discrimination on the basis of military service. The district court dismissed those claims, but plaintiff argues among other things on appeal that he was denied the right to move to amend the complaint to save the claim. In reversing that decision on the motion to amend, the Court of Appeals (Leval, Calabresi and Carney) invokes a procedure that you may not have been aware of.

In Loreley Financing v. Wells Fargo, 797 F.3d 160 (2d Cir. 2015), the Second Circuit said that "The proper time for a plaintiff to move to amend the complaint is when the plaintiff learns from the District Court in what respect the complaint is deficient. Before learning from the court what are its deficiencies, the plaintiff cannot know whether he is capable of amending the complaint efficaciously." This means that the time to move to amend is not when the defendant argues that the complaint is deficient. Rather, the time to amend is when the district court identifies those deficiencies in a court ruling. "Before learning from the court what are its deficiencies, the plaintiff cannot know whether he is capable of amending the complaint efficaciously."

The district court misapplied the Loreley procedure, ruling in a single order that the complaint failed to state a claim and denying plaintiff leave to amend the complaint, "faulting him for having failed to submit a proposed amended complaint in the time between the defendant's motion to dismiss and the court's ruling on it." As the Court of Appeals says, "It is the District Court’s ruling, not the defendant’s arguments in support of a motion to dismiss, that puts a plaintiff on notice of the complaint’s deficiencies. A plaintiff has no obligation to replead merely because the defendant has argued that the complaint is deficient, without knowing whether the court will agree."

No relief under the ADA for retaliation, HWE and other claims

There are many ways for a plaintiff to lose a disability discrimination case in federal court. This case highlights many of those pitfalls.

The case is Flieger v. Eastern Suffok BOCES, a summary order decided on June 1. To win a case under the Americans with Disabilities Act, you have to be disabled. But plaintiff is not disabled under the Act. While she suffered a back injury -- and we all know that back pain hurts like hell -- on the day of the injury, she did not leave work early but instead took some Aleve and kept working. She came back to work the next day and took no time off over the injury. This all means she was not substantially impaired in any major life activity.

Plaintiff also suffered no adverse employment actions because of her disability. Bad things did happen to her, but they were not material changes in her everyday work experience. While plaintiff was denied a summer school teaching position, she admitted at deposition that she understood that employment for positions like this were discretionary and not guaranteed. She also took too many sick days, which somehow rendered her ineligible for the summer position. While she was transferred to other classrooms, these are not enough. One transfer was not a demotion or setback to her career; the only problem with one transfer was that the the other teacher she had to work with was a "low talker," a phrase the Second Circuit (Newman, Pooler and Hall) uses without quotations or any footnote reference to Seinfeld. The other classroom transfer was, in the Second Circuit's view, not done for pretextual reasons, as management said it wanted plaintiff to have extra supervision, and the evidence shows that the decisionmaker did not discriminate against plaintiff and that, instead, plaintiff was quite thankful for this supervisor's assistance in sending her to the Mayo clinic, and she also thanked her for the transfer in glowing terms.

Plaintiff's retaliation claim under the ADA also fails. Plaintiff says the classroom transfers were retaliatory for complaining about discrimination. But the Second Circuit says that the first transfer was not retaliatory because her visit to the Mayo Clinic was not a complaint of discrimination nor a request for an accommodation. The second classroom transfer was not retaliatory for the same reason it was not discriminatory under the ADA.

We also have a hostile work environment claim under the ADA. That claim fails also. Plaintiff had a hearing disability. A supervisor said after learning of plaintiff's disability that she "didn't ask for a deaf assistant." While this was inappropriate language, this comment did not rise to the level of severity required for a single incident to create a hostile work environment. Plaintiff also told another supervisor at the time that she was being treated fairly.

Finally, plaintiff claims she was denied a reasonable accommodation because of her disability. This claim is also dismissed. Plaintiff is unable to physically hold or escort a student in danger of causing injury to himself or others, and she cannot administer any crisis intervention or prevention techniques because she cannot engage in any kind of restricting. In other words, there are certain tasks that plaintiff cannot perform, with or without an accommodation. That means she cannot perform essential job functions and is therefore not qualified for an accommodation under the ADA.