Circuit rejects constructive discharge claim

It's been a while since the Second Circuit last issued a published opinion on constructive discharge. The Court this time around reminds us how difficult it is to prove that an employee was justified in quitting her job.

The case is Shultz v. Congregation Shearth Israel of the City of New York, decided on August 10. The Court of Appeals held that the plaintiff did have a pregnancy discrimination and FMLA interference claim even though management rescinded her termination two weeks after it showed her the door. That ruling found that plaintiff suffered an adverse employment action even though she did not spend a day unemployed and defendant changed its mind after she hired a lawyer.

But plaintiff also wants damages for back pay and a hostile work environment. This is important for plaintiff because, as the Court of Appeals (Lynch, Cabranes and Matsumoto D.J.] points out, plaintiff may have a claim arising from her brief pregnancy-related termination, but the damages arising from that claim may be slight.

Plaintiff claims constructive discharge in violation of Title VII because management made her working conditions so horrible that she had no choice but to resign. Here is the evidence of constructive discharge:

After [defendants rescinded the termination letter]. Shultz was subject to a “pattern and practice of repeat discrimination” by Reiss, Soloveichik, and Lustig, consisting of at least the following events: (1) speaking loudly enough to be overheard by Shultz, Reiss told Lustig in a telephone conversation that the Congregation “had a right” to disapprove of Shultz’s pre-marital pregnancy and disparaged Shultz and her lawyers; (2) Shultz’s name was removed from the Congregation’s newsletters to the membership and from the employee list that was displayed on a wall outside the synagogue; (3) Reiss continued to demand that she complete her assigned tasks before the date of her previously scheduled termination, and to transition her responsibilities to other employees; and (4) Soloveichik and Lustig refused to speak with her.

Courts do not like constructive discharge claims. “The constructive-discharge doctrine contemplates a
situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” The working conditions have to be horrendous for an employee to claim that management effectively pushed her out the door. This case does not satisfy that test. The Court writes:

These acts alone, occurring over a period of a few weeks, are insufficient to raise an issue of fact with respect to whether Shultz can meet “the high standard to establish that [s]he was constructively discharged.” “Such a claim requires the employee to show both (1) that there is evidence of the employer’s intent to create an intolerable environment that forces the employee to resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign.” Id. (internal quotation marks omitted). Shultz has not pled sufficient facts arising after the notice of termination to establish that a reasonable person would have been compelled to resign in these circumstances.

For these reasons, plaintiff also does not have a hostile work environment claim. In order to make out a hostile work environment claim, "a plaintiff must . . . show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Management may have been been rude to plaintiff, but it is not against the law to be rude.

Fired then rehired two weeks later creates an adverse employment action

I would say this is the most pro-plaintiff Title VII decision issued by the Court of Appeals this year. The Court holds for the first time that a plaintiff suffers an adverse employment action where the employer fires her (allegedly because of her pregnancy) but then rescinds the termination two weeks later. The Court also holds the plaintiff has made out an FMLA interference claim.

The case is Shultz v. Schearith, decided on August 10.  When plaintiff returned from her honeymoon on July 20, 2015, she was visibly pregnant. Management fired her the next day, stating her position was eliminated. The termination was effective August 14, 2015. After plaintiff's lawyer got involved, defendant sent plaintiff a letter on August 5, 2015 stating defendant had reinstated her position and she would not be terminated on August 14, 2015.

Here's the question: was plaintiff's limited termination an adverse employment action? The courts hold that not everything bad that happens at work is worth a lawsuit. Plaintiff has to allege an adverse action, which is part of the prima facie case of employment discrimination. What follows is the definition of adverse action:

A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.

Both sides have decent arguments on appeal. The Court of Appeals summarizes them:

Shultz argues that informing an employee that she has been fired is the quintessential adverse employment action, in that it terminates (even if prospectively) her employment, occasioning both the psychological anxiety of unemployment and the costs associated with beginning a search for employment (and, where the employee believes she has been fired for discriminatory reasons, the costs of finding and retaining counsel to pursue appropriate legal action). Defendants argue in response that the tangible adverse consequences of firing are imposed only when the job is actually lost; during the interim period before the firing becomes effective, the employee continues to work in the same position and receive the same pay and benefits. Each of those arguments has some intuitive appeal.

As Judge Lynch writes, "Our Court ... has not yet decided whether a notice of termination, which is rescinded before the termination is implemented, qualifies as an adverse employment action." So the Court of Appeals (Lynch, Cabranes and Matsumoto D.J.] draws from Supreme Court authority on when to calculate the statute of limitations in wrongful discharge claims. In Delaware State College v. Ricks, 449 US 250 (1980), the Court said the SOL starts to run when the plaintiff learns about his termination, i.e., when management notifies him about it, even if the termination actually takes effect down the road. Judge Lynch writes, "The Supreme Court’s conclusion that a discrimination claim accrues upon notice of termination, rather than upon the implementation of that decision, necessarily implies that the notification of termination qualifies as an adverse employment action."

The Court tells how this decision works in practice. The short termination period does give plaintiff a case, but it may result in limited damages, especially if she did not lose any money. Also, since plaintiffs must mitigate their damages, the Court of Appeals has held in the past that “[a]n employer may toll the running of back pay damages by making an unconditional offer to the plaintiff of a job substantially equivalent to the one he or she was denied, even without an offer of retroactive seniority.” Pierce v. F.R. Tripler & Co., 955 F.2d 820, 830 (2d Cir. 1992). The Court adds that, in some cases, a rescinded termination decision may not be an adverse action if the employer does it quickly, like the next day, rendering the termination a de minimus event. But for plaintiff in this case, it could be an adverse action because she "had ample time to experience the dislocation of losing her employment at a particularly vulnerable time, undertake the effort of retaining counsel, and inform the Congregation that she was going to file suit."

This reasoning also supports plaintiff's FMLA interference suit, which stems from the same facts. Employers cannot interfere with employee rights under that statute. "We see no reason to construe the FMLA differently from Title VII with respect to whether the rescission of a notice of termination given to a pregnant employee establishes as a matter of law that the notice may not constitute an
adverse employment action sufficient to deter or interfere with the employee’s exercise of FMLA rights."

State anti-discrimination law does not conflict with National Labor Relations Act

This case asks whether union members who want to challenge the union's discriminatory actions may do so pursuant to the New York State Human Rights Law, which prohibits discrimination in employment and in union membership. The question is whether the National Labor Relations Act, which covers the union's duty of fair representation, preempts the state anti-discrimination laws. The Court of Appeals holds there is no preemption, and union members can sue their unions under state law.

The case is Figueroa v. Foster, decided on July 25. We assume that federal law preempts state law, but, as always, there are many exceptions. In this case, there would appear to be some overlap between the State Human Rights Law and the NLRA. We solve this problem under a three-part test:

“Under the Supremacy Clause of the Constitution, state and local laws that conflict with federal law are without effect.” N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 103‐04 (2d Cir. 2010). “In general, three types of preemption exist: (1) express preemption, where Congress has expressly preempted local law; (2) field preemption, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; and (3) conflict preemption, where local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an 1 obstacle to the achievement of federal objectives.”

As Judge Pooler frames the issue:

If the NLRA’s duty of fair representation preempts the NYSHRL, then Title VII as administered by the Equal Employment Opportunity Commission will serve as the primary force protecting union  members from invidious discrimination by their labor organizations. If, on the other hand, the NLRA’s duty of fair representation does not preempt the NYSHRL, then the NYSHRL as administered by the New York State Division of Human Rights will provide union members with additional protections against invidious discrimination by their labor organizations.

There is no preemption. Under the field preemption theory, where the federal law is so comprehensive that it forecloses any relief under state law, not every provision of the NLRA automatically occupies the field which its proscriptions function. "There is no evidence that the NLRA’s duty of fair representation was designed or intended to preempt state laws focused on combatting invidious discrimination, such as the NYSHRL. Instead, our independent review of the  evidence leads us to the opposite conclusion based on the textual and structural relationships between the NLRA, Title VII, and the NYSHRL." Congress has manifested an intent that the NLRA not preempt Title VII and other federal antidiscrimination laws. The state antidiscrimination law is a precursor to Title VII, enacted long before the Civil Rights Act of 1964 because New Yorkers are more enlightened than the rest of the country. Title VII explicitly states that it does not preempt comparable state antidiscrimination laws, and the Second Circuit (Calabresi, Pooler and Wesley) find that Congress considered and sought to preserve the states' coordinate role in fighting discrimination in employment. The text of Title VII further recognizes the continued vitality of its state-law counterparts, and it is not impossible for a private party to comply with the NLRA's duty of fair representation and the NYSHRL's prohibition against employment discrimination.

Was he seized? The majority says yes. The dissent says no.

Here are the facts in this criminal case where the police obtained evidence that the defendant claims was unlawfully seized:

In May 2014, a woman pulled her car alongside a police cruiser in Bridgeport, Connecticut to ask about the process for amending a police report.

After Officer Thomas Lattanzio responded, the woman drove away for a few feet, then reversed toward the police car and told Officer Lattanzio that a man named Branden was nearby with a gun. She pointed down the street, but Officer Lattanzio did not see anyone. Without giving her name, the woman drove away.

Officer Lattanzio then drove in the direction the woman pointed, searching for an armed man. He soon saw Huertas standing on a street corner holding a black bag. Officer Lattanzio drove toward Huertas, going the wrong way on the one-way street. As the cruiser approached, Officer Lattanzio turned on the cruiser’s spotlight and illuminated Huertas. Through the car’s window, Officer Lattanzio asked Huertas a few questions, such as “What’s going on?” and “What happened with the girl?” During Officer Lattanzio’s approach and questioning, Huertas stayed in a fixed position and began answering the questions. The encounter lasted between thirty seconds and one minute. As soon as Officer Lattanzio got out of the cruiser, Huertas ran away. Other police officers later found and arrested Huertas. A search of Huertas’s route turned up a bag similar to the one Huertas had been holding. The bag contained a firearm.

The case is US v. Huertas, decided on July 24. If the police "seized" defendant, then the search was illegal and the police cannot use the gun against him. Defendant says he "submitted" to police authority, the equivalent of a seizure under the Fourth Amendment. The Court of Appeals (Jacobs and Winter) disagrees, holding that defendant was evasive, having run away when the police approached him. Had he stayed still, defendant would have quieted suspicion and hoped the officers would have driven away after being satisfied with his answers to their questions. Instead, he ran. The police were not within defendant's reach, and could not have physically restrained him. The totality of the circumstances says defendant was evading police authority, not submitting to it. There was no seizure.

Judge Pooler dissents. She says the majority extends the meaning of "evasion" beyond activity intended to slow down pursuing officers, and that the Court further "embraces the wrong side of a deepening split between the circuits regarding whether a suspect must do more than simply pause briefly in order to be seized within the meaning of the Fourth Amendment.

The majority states that Huertas’s conduct was undertaken to “quiet suspicion and hope that Officer Lattanzio would drive away after being satisfied with answers to his questions,” and that Huertas thereby intended to “evade” the police. The majority thus adopts the view that answering questions to clear one’s name counts as “evasion” just as much as does pretending to submit so that officers put themselves in a worse position for an impending chase.

The consequences of eliding this distinction are far‐reaching. Suppose, for example, that a suspect speaks with the police not for one or two minutes, but for an hour or two, because he thinks he can talk his way out of going to jail. Would we say he had not submitted, since his only hope was that the interview would “quiet suspicion” and that the officer would let him go “after being satisfied with answers to his questions”? I am comfortable asserting that the vast majority of criminal suspects engage with the police only when they think they will avoid incarceration by doing so. Under that assumption, the majority’s position suggests that stopping to speak with the police, even at length, is unlikely to constitute a seizure because it instead will constitute evasion.

Mistakenly locked up for three years, US citizen cannot bring lawsuit

This case involves an American citizen who was locked up for three years because the authorities thought he was a deportable immigrant. He was not. After he left custody, the plaintiff sued his captors, and he prevailed in the district court, which awarded him $82,500 in damages. The Court of Appeals reverses, and the plaintiff has no case.

The case is Watson v. United States, decided on July 31. In locking up Watson, "ICE agents were presented with information strongly suggesting that Watson was a citizen based on his father’s naturalization, but the agents did not competently pursue the leads. For example, during Watson’s first interview with ICE, he claimed U.S. citizenship, told the ICE agents the names of his father and step-mother, and gave their telephone number to assist the investigation. The ICE agents did not call the telephone number, despite writing a note to do so in order 'to verify status.'" The Second Circuit highlights other blunders that led to Watson's incarceration.

Watson loses because the statute of limitations under the Federal Tort Claims Act is two years. The Court (Jacobs, Livingston and Katzmann [partially dissenting]) states that "a false imprisonment claim starts to run when a detainee begins to be held pursuant to legal process." The Court holds that Watson was held pursuant to such process by the time an immigration judge ordered Watson's removal from the U.S., which occurred on November 13, 2008. By that date, an immigration judge had ruled that the government had the right to detail Watson Since Watson's claim for false imprisonment was filed on October 20, 2013, his claim was untimely.

What about equitable tolling? Under that theory, the statute of limitations is put on hold (extending the time to bring the lawsuit) if the plaintiff "has been pursuing his rights diligently and some extraordinary circumstance stood in this way. Surely this helps Watson, right? The Second Circuit notes that "Watson's case is certainly extraordinary in a number of unfortunate ways." But we define "extraordinary" based on "the severity of the obstacle impeding compliance with a limitations period." Plaintiff must also show these extraordinary circumstances caused him to miss the deadline. The Court writes:

The district court’s grant of equitable tolling was based on Watson’s lack of education and legal training, his unawareness that he could bring an FTCA claim until being advised by appointed counsel, his depression, and “most significantly,” the fact that government officials told Watson that he was not a U.S. citizen. None of those reasons justifies equitable tolling.

 The Court explains it this way: (1) Watson "mounted a vigorous case in the immigration court" in trying to stop his deportation; (2) his depression did not stop him from contesting his citizenship before the immigration judge, so he could have pursued his damages claim and (3) equitable tolling does not usually help the plaintiff simply because of his lack of education or ignorance of his right to bring the claim.

Watson also has no claim for malicious prosecution and negligence, the Court says, because he cannot show malice on the part of the people who locked him up; it was more likely negligence, which is not malicious. However, under NY law, there is no claim for "negligent investigation,"
and state law did not require ICE officials to follow their own directives.

Occupy Wall Street protest watcher loses false arrest case

This case tells us how hard it is to sue the police for false arrest. The plaintiff -- a 73 year old lawyer who talked on the street with some Occupy Wall Street protesters -- is quite sympathetic and appears to have been in the wrong place and the wrong time, or perhaps he was in the right place at the right time. No matter. He loses the case under the broad standards governing probable cause.

The case is Kass v. City of New York, decided on July 24. Here is what happened: on the anniversary of the Occupy movement in 2013, the police placed barricades around the perimeter of the park to cordon off the area where the protestors were gathered and to separate the protestors from pedestrians who were on the adjacent sidewalk. Kass was a spectator who decided to speak quietly with the protesters. Kass did not impede pedestrian or vehicular traffic. The police approached Kass and told him to "keep walking." Kass said he wanted to hear the protestors’ views, he was not blocking pedestrian traffic, and he had a right to remain on the sidewalk. The police repeated the directive but Kass refused to comply, but Kass repeated he had a right to speak with the protesters. An officer grabbed Kass by the elbow, but Kass pulled away.When the officer suggested that Kass go inside the park to continue his conversation with the protestors, Kass refused to comply, so the officer grabbed Kass’s right arm and pulled him toward the middle of the sidewalk, away from the barricade and protestors. Kass objected, saying “get your hands off of me, how dare you, get your hands off me.” Kass was then arrested. That charge was dismissed for failure to prosecute.

Did plaintiff do anything wrong? Even if he did not, the police could still have probable cause, or at least qualified immunity. That's how Kass loses the case. On the Obstructing Governmental Administration charge, the police were performing an official function because they were trying to regulate pedestrian traffic in the heart of downtown shortly before 5:00 pm. While Kass was on the sidewalk, a traditional public forum, that is not enough for him to win the case, as the government has an interest in keeping public spaces free of congestion and the officers told him he could continue speaking with the protesters inside the park. Since Kass refused the officers' repeated officers to move along, he interfered with an official function, and the officers could reasonably believe that Kass intended to interfere with their lawful efforts. So that takes care of the Obstructing claim.

Kass also loses on the false arrest claim arising from the disorderly conduct charge. The officers reasonably thought he was congregating with others in a public space, he refused a lawful order to disperse and officers could reasonably disagree about whether his behavior recklessly created a risk of causing public inconvenience, annoyance or alarm.

What does it all mean? What looks like relatively innocent behavior by Kass was enough to justify his arrest. We do not have free speech/association absolutism under the First Amendment. The police have many defenses in these cases, including qualified immunity, which gives them the benefit of the doubt. If Kass was just an establishment lawyer strolling along to see what the protesters were up to, it is likely this case has turned him into an antiestablishment guy as well. No one likes to be arrested without a good reason.

Summary judgment granted to plaintiff due process/firearms case against Nassau County

This is a guns rights case, sort of. The Court of Appeals holds that a plaintiff was entitled to summary judgment in a procedural due process case involving Nassau County's refusal to return a woman's shotguns.

The case is Panzella v. Sposato, decided on July 19. Plaintiff's ex-husband got an ex parte order of protection against her. It said she could not possess any firearms. But since ex parte orders cannot prohibit you from possessing guns without a hearing, the gun prohibition could not really apply to her. But the police confiscated her guns anyway and would not give them back under County policy that says the Sheriff cannot return guns without a court order. The district court granted plaintiff summary judgment in this case on her due process case, and the Court of Appeals (Calabresi, Pooler and Vilardo [D.J.]) affirms.

Judge Calabresi tees up the analysis like this:

The facts relevant to this appeal are largely undisputed. Both parties agree that Defendants confiscated Panzella’s longarms, and that the County, through the Sheriff’s Department, has a policy of doing so even when an order of protection issued by the Family Court does not explicitly order the Defendants to confiscate firearms pursuant to § 842-a. The parties also agree that Defendants have a policy of retaining confiscated firearms, even after an order of protection expires or is dismissed, until the Sheriff’s Department is presented with an order from a court of competent jurisdiction directing the return of the longarms. And all agree that the Family Court believes it cannot issue such an order in circumstances like those before us. 

When the plaintiff wins summary judgment, it means she has a great case. Usually, it's defendants who win summary judgment motions. Not this case. Under the well-known due process standards, the court weighs the following factors in determining if the plaintiff got the process that was due when the government deprived her of a liberty or property interest:

(1) “the private interest that will be affected by the official action;” (2) “the risk of erroneous deprivation of such interest through the procedures used;” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

We call this the Matthews factors, named after a Supreme Court case from the 1970s. The first factor tilts in plaintiff's favor because she has a property interest in her guns. She meets the second factor because, while she can (as the County argues) bring an Article 78 petition, that takes a substantial amount of time and that procedure places the burden on plaintiff. In light of the burdens an Article 78 petition places on the plaintiff, "there is a significant risk of erroneous deprivation of that person's interest in her longarms." While she would probably win the Article 78, the Court says, that would not prevent a lengthy deprivation, as per Supreme Court authority, Fusari v. Steinberg, 419 U.S. 379 (1975), a principle of which I was unaware until now. As for the third factor, the government's interest in this equation -- public safety -- is limited since plaintiff could buy new guns given the lack of licensing requirement for such weapons in Nassau County. Finally, since a post-deprivation due process hearing would not be particularly burdensome for the County, all the due process factors tilt in plaintiff's favor, and she wins the case.