Monday, March 19, 2018

Bergstein & Ullrich succeed in clarifying New York City punitive damages test

City Human Rights Law Damages Threshold, Now Clarified, Applied by Second Circuit

The panel said the lower threshold found by the state's Court of Appeals should have meant a district court allowed damages under the city's Human Rights Law to be sought.

By Colby Hamilton |
U.S. Court of Appeals for the Second Circuit U.S. Court of Appeals for the Second Circuit.
Damages under New York City’s Human Rights Law can be sought under a lower standard than under federal civil rights law—and a district court erred in not providing instructions to a jury for damages under the local law, the U.S. Court of Appeals for the Second Circuit said in an opinion issued Friday.

Veronika Chauca won a wrongful termination suit against her former company and bosses at Park Management center in 2015. A jury awarded her $60,500 after finding the company discriminated against her because she was pregnant.

However, U.S. District Judge Eric Vitaliano of the Eastern District of New York denied Chauca’s request to instruct the jury on damages under the city’s Human Rights Law, stating that there was “no showing of malice, reckless indifference [or] that there was an intent to violate the law”—the standard for damages under the federal Civil Rights Act.

On appeal in a previous ruling, the circuit found state law had not clearly resolved the standards issue, and the question was posed to New York’s highest court as to what the exact guidelines are for punitive damages under the city’s Human Rights Law.

Last year, the court responded that the standard is whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a conscious disregard for the rights of others. This standard, the panel noted Friday, “expressly rejected the application of the federal standard,” as the city’s Human Rights Law requires neither a showing of malice nor awareness of the violation of a protected right, according to the Court of Appeals.

The panel of Chief Judge Robert Katzmann, and Circuit Judges Robert Sack and Peter Hall, then held that the district court was wrong in applying the higher federal standard on the jury instructions question, and remanded the case for further proceedings.

“This confirms that the city’s law is an entirely separate statute than Title VII, not only for liabilities but for damages,” said Bergstein & Ullrich name attorney Stephen Bergstein, who represented Chauca on appeal.

Private attorney Arthur Forman was counsel for the Park Management Systems defendants. He could not be reached for a statement.

Friday, March 16, 2018

Public employee gets around Garcetti speech rule, for now

One of the more vexing issues in constitutional law is when public employees can speak out on important matters without fear of retaliation. In 2006, the Supreme Court ruled 5-4 that public employees have the right to speak out only in their capacity as citizens and not as employees. This distinction kills off the case if plaintiff speaks pursuant to his official job duties. Since the Garcetti ruling, most plaintiffs have lost their cases because their speech often draws from their official duties and management has the right to regulate that speech, no matter how important it is.

The case is Brown v. Halpin, issued on March 15. Brown was a lawyer for the Connecticut comptroller, providing legal advice to the retirement commission. She discovered that the state was not following the rules governing disability benefits, i.e., that disabled state employees were receiving benefits even if they could work other jobs. Brown called shenanigans on the statewide policy violation, advancing her concerns in writing. But the supervisors would not provide Brown's written objections to the commission unless she changed them to falsely support the incorrect standard for disability benefits. Brown would not do that, and she raised her concerns with the state auditor's office. Then Brown suffered retaliation for speaking out.

Does Brown have a case? What about Garcetti's rule that it's not free speech if the employee speaks pursuant to her official job duties? Brown's speech certainly related to her duties. But the district court denied the motion, citing Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), which held that a rookie police officer could not suffer retaliation after refusing to falsify a police report that implicated a sergeant in police misconduct. In other words, he had the right to "refuse to engage in unlawful conduct under the guise of his job responsibilities. (I argued Jackler). The trial court in Brown further held that "the pleadings do not admit that Brown is under an employment obligation to report misconduct to the Auditors."

The individual defendant in Brown appealed to the Second Circuit, claiming entitlement to qualified immunity. You can take up this immediate appeal on immunity grounds if the facts are clear that the defendant did not violate clearly-established law. But the Circuit has no jurisdiction to hear this case because "factual disputes preclude resolution of whether Halpin is entitled to qualified immunity. . . . The question of whether Halpin is entitled to qualified immunity is . . . not a pure question of law that can be decided on interlocutory appeal because it depends on resolution of a factual dispute: whether the proposed revisions [to Brown's memo on proper operation of the program] were false." The Court (Calabresi, Katzmann and Walker) also says the interlocutory appeal is inappropriate because factual considerations govern whether Brown spoke pursuant to her duties. In fact, the Court says, "Brown's written job responsibilities are sufficiently ambiguous that we cannot resolve this dispute on appeal."

So this is sort of a way around Garcetti, although mostly on procedural grounds since the facts are disputed and the Court of Appeals cannot definitively resolve this dispute. But I say sort of a victory since most employee speech cases die on the vine without this analysis. Brown's case returns to the district court for discovery. 

Tuesday, March 13, 2018

The Golden Rule and summations

When this case first went to the Court of Appeals, the Second Circuit used it to clarify when someone could invoke the civil rights laws to redress national origin discrimination. It was a ground-breaking decision, in which the Court explored what it meant to be Hispanic. For the plaintiff, it was a devastating loss because the Second Circuit vacated a million-dollar verdict over trial errors. Plaintiff loses the second trial, and the Court of Appeals affirms that trial loss.

The case is Barella v. Village of Freeport, a summary order issued on March 13. The issues this time around are different. It is not easy to get a new trial based on trial errors, as the judge has discretion to manage the courtroom and the standard of review is "abuse of discretion." Plaintiff argues he was denied a fair trial because defendants' lawyer invoked the Golden Rule in summation.

What is the Golden Rule? At trial, it's when you ask the jury to place themselves in your client's shoes. It's considered a manipulative tactic that plays on juror sympathy. But the Golden Rule is only prohibited when you are addressing damages. It does not apply when you are talking to the jury about liability. Plaintiff invites the Court of Appeals to extend the Golden Rule to summations when they address liability, but the Court of Appeals (Cabranes, Raggi and Vilardo [D.J.]) will not do so.

Barrella argues that Hardwick’s counsel engaged in “golden rule” argumentation during closing, which asks jurors to place themselves in the position of a party. He invites us to change our precedent regarding such arguments, requesting that we extend our prohibition on golden rule arguments beyond the context of damages (the only context in which they are forbidden) to any kind of liability. See Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir. 1990). We decline to do so. Regardless of whether Hardwick’s counsel in fact made a “golden rule” argument during closing, his argument was not made in the context of damages, and a new trial is not warranted.

Monday, March 12, 2018

The ministerial exception strikes again

An emerging trend in the area of employment discrimination law is the "ministerial exception," which holds that the Constitution prohibits certain employment discrimination lawsuits by "ministers" against their religious employers. That doctrine quashes a racial and religious discrimination lawsuit against New York Methodist Hospital.

The case is Penn v. New York Methodist Hospital, issued on March 7. The Supreme Court endorsed the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. 171 (2012), and the Second Circuit applied that ruling for the first time in an extended way in Fratello v. Archdiocese of New York, 863 F.3d 190 (2d Cir. 2017). The point is that the courts are not permitted to second-guess the hiring and firing decisions of religious entities when it comes to employees whose job duties take on ministerial functions, even if their formal job title is not minister. So, in Fratello, the case was dismissed under the ministerial exception because the plaintiff was the principal of a religious school and took on some religious duties in managing the students.

In this case, while the plaintiff was a duty chaplain, the focus is on the employer: whether the New York Methodist Hospital can invoke the ministerial exception. As the hospital's name would suggest, it originally operated as an explicitly religious institution. That is no longer the case, although "vestiges of NYMH's religious heritage remain, as "its Methodist influence can still be seen in the hospital," which "has retained significant aspects of its religious heritage" by, for example, telling employees during orientation that "patients are human beings who are created in the image of God." The hospital's Department of Pastoral Care endeavors to provide an "ecumenical program of pastoral care" to patients and to "see that the needs of the whole person -- mind and spirit as well as body -- are met." The Court of Appeals (Hall and Bolden [D.J.] with Droney in dissent) concludes:

While a close question, NYMH because of its history and continuing purpose, through its Department of Pastoral Care, is a “religious group,” and since Mr. Penn’s role within the Department of Pastoral Care was to provide religious care to the hospital’s patients and religious care only, the ministerial exception doctrine should be applied. Once applied, its application warrants this lawsuit’s dismissal.
 For starters, "Both before and after Hosanna Tabor, other circuits have applied the ministerial exception in cases involving 'religiously affiliated entit[ies],' whose “mission[s are] marked by clear or obvious religious characteristics.” And, "Courts have also allowed hospitals to invoke the ministerial exception doctrine in employment suits from pastoral staff members." In the end,

The Department of Pastoral Care required chaplains, like Mr. Penn, to distribute Bibles, perform religious rituals and organize and conduct religious services, including Easter services and memorial services. While NYMH may have shed significant aspects of its religious identity by amending its Certificate of Incorporation, the hospital’s Department of Pastoral Care has retained a critical aspect of that religious identity in order to provide religious services to its patients. These services, while not limited to those who are Methodist, are indisputably religious.

Friday, March 9, 2018

How to win a civil rights case after losing the disciplinary hearing

One of the challenges in representing public employees in civil rights litigation is that if they were disciplined prior to the lawsuit, you may run into procedural obstacles that are unique to public employees, res judicata and collateral estoppel. The plaintiff in this case gets around those obstacles.

The case is Abdelal v. Kelly, a summary order issued on February 21. Plaintiff was a NYC police officer who was fired in 2013 following a disciplinary hearing into alleged misconduct. Private employees do not always get due process hearings like this, but public employees often do. While the hearing gives the employee a chance to expeditiously prove his innocence before a hearing officer. If the employee wins the hearing, he keeps his job. If he loses the hearing, he can file an Article 78 petition in court. Those petitions often fail, as the courts are loathe to second guess the hearing officer's factual and credibility determinations. That is what happened here.

Plaintiff did not give up after losing the due process hearing and Article 78 petition. He filed suit in the Southern District, claiming he was treated differently because of his national origin and was subjected to a hostile work environment. How can he bring this case if the due process hearing sustained the disciplinary charges against him? Wasn't that his day in court. Sometimes yet, but not in this case.

The Court of Appeals (Walker, Lynch and Chin) finds a way to revive this case even though plaintiff lost the disciplinary hearing and Article 78. First, there is no res judicata (claim preclusion) problem because a civil rights lawsuit gets you damages that were never available during the disciplinary proceeding. In other words, the civil rights case is a new claim that is separate and apart from the one he lost at the hearing. The case for that proposition is Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995).

The tricker issue is collateral estoppel, or issue preclusion. Management argues that if plaintiff was found guilty of work-related misconduct at the disciplinary hearing, he cannot relitigate those issues in a civil rights case because those facts have already been resolved after a full and fair proceeding. But the law is more nuanced than that. Plaintiff did not raise his racial and religious discrimination claims at the disciplinary hearing, and the Appellate Division in rejecting the Article 78 appeal did not mention those issues, either. "The fact that the First Department concluded that the administrative record contained 'substantial evidence to support the finding that petitioner engaged in conduct prejudicial to the good order, efficiency and discipline of the NYPD' does not mean that the court considered and rejected Abdelal's claims that he was subjected to harassment and disproportionate punishment for discriminatory reasons."

Tuesday, March 6, 2018

Victory for Fair Housing Act plaintiff

The plaintiff in this case sued the New York City Housing Authority for disability discrimination relating to unhealthy conditions at her home. The district court dismissed the case under Rule 12, but the Court of Appeals reinstates the case, finding plaintiff satisfies the stringent Iqbal pleading standards.

The case is Tull v. New York City Housing Authority, a summary order issued on February 14. This is a failure to accommodate claim. Plaintiff has to show “(1) [s]he is a qualified individual with a disability; (2) the defendant is subject to one of the Acts; and (3) [s]he was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant because of [her] disability.” We focus on the third element.

While the Housing Authority argues that plaintiff cannot plausibly allege she was denied of the benefit of her apartment because of her disabilities, the Court of Appeals (Sack, Livingston and Carney) disagrees, stating:

Tull plausibly alleged, first, that living in her current apartment seriously exacerbates her medical conditions. She further alleged that NYCHA failed to accommodate her medical disability by denying her multiple requests to be transferred to a different apartment, either permanently, or on a temporary basis while necessary repairs were made to her current apartment. Tull repeatedly informed NYCHA that she cannot be present during “asbestos abatement[,] ․ the breaking down of walls and the removal of mold,” and that she must be “medically accommodated to make such repairs,” otherwise the repairs “will make [her] more ill.” Tull also attached letters from her doctors which confirm that “[i]t is very crucial for this high risk stroke patient to be transferred to new housing location with proper accommodations for her medical conditions.”
The Housing Authority also says plaintiff's requested accommodation is unreasonable. Again, the Court of Appeals sees it differently. "Notably, NYCHA's own Standard Procedure Manual explicitly recognizes a 'Transfer as a Reasonable Accommodation.' And in any case, the reasonableness of Tull's request cannot be determined on her pleadings alone. See Austin v. Town of Farmington, 826 F.3d 622, 630 (2d Cir. 2016) (“Reasonableness analysis is ‘highly fact-specific’ ․ [and] cannot be determined on the pleadings because the relevant factors are numerous and balancing them requires a full evidentiary record.”)."

Monday, March 5, 2018

Circuit clarifies constitutional medical privacy rights

This snafu erupted at the Rensselaer County Jail, where the password for limited-access health records was inadvertently made available so that inmates and jail employees suffered a privacy breach. These victims brought suit in federal court, but the judge dismissed the case because they lacked a constitutionally-protected privacy interest in their medical records since their medical conditions were neither serious nor stigmatizing, and they were therefore not exposed to discrimination and intolerance. The Court of Appeals reverses.

The case is Hancock v. County of Rensselaer, issued on February 9. The Constitution does not mention anything about privacy, but the Supreme Court says you have a zone of privacy "in avoiding disclosure of personal matters," including "information about one's body." This includes medical records. When reviewing legislative action in cases like this, courts apply intermediate scrutiny in determining if the statute is substantially related to an important government interest. In reviewing executive action like what happened in this case, courts as when the actions were arbitrary or shocked the conscience.

But since the plaintiffs did not consent to the access of their medical records, the Second Circuit is presented with a new kind of privacy case, requiring a new constitutional test. As the plaintiffs are not prisoners but jail employees, the Court applies the shocks-the-conscience test, bearing in mind that people have a fundamental interest in their medical privacy. While the district court sided with the County in holding that plaintiffs' medical conditions were not serious or stigmatizing, that reasoning derives from a Second Circuit ruling, Matson v. Board of Education, 631 F.3d 57 (2d Cir. 2011), which ruled against a music teacher, who had a weak medical privacy interest because her non-stigmatizing condition was revealed in a report about her alleged abuse of the sick leave policy. The Circuit now clarifies its medical privacy jurisprudence.

An interest in medical privacy derives not just from a desire to keep one's medical conditions to oneself but also from the collectively enjoyed benefit of being able to expect confidentiality from those we depend on to care for the most intimate aspects of our lives. A slow drip of exceptions would erode that protection beyond recognition. As such, the interest in preserving the integrity of the doctor-patient relationship deserves its own consideration independent of the idiosyncrasies of the privacy invasion. The baseline individual interest in privacy is thus substantially greater than whatever the least abashed individual would allow.

The Court holds that the greater the plaintiff's privacy interest in protecting his medical information, the more compelling the governmental interest must be in exposing the information. "But even the weakest privacy interests cannot be overridden by totally arbitrary or outright malicious governmental action." Moreover,

How to judge the government action depends on context. Government actors with specific duties of confidentiality or care unreasonably invade privacy even if they do so as a result of "deliberate indifference." On the other hand, a government actor in the midst of a pressing emergency might not be liable for even deliberate invasions. See id. Public disclosure (or threatened public disclosure) of medical information is a greater breach of privacy than one unauthorized government employee viewing the information, so greater care should be expected to prevent the former.
The district court must reconsider this case under the clarified rules set forth by the Court of Appeals in  this case. It also has to consider whether defendants are entitled to qualified immunity. Was the law at the time of the privacy breach clearly-established? That's for the district court to resolve.