Friday, December 2, 2016

Appellate Division upholds retaliation findings in SDHR case, but with low damages

We all know about the EEOC, the federal agency that investigates and tries to resolve employment discrimination cases. Less well-known is the State Division of Human Rights, the EEOC's counterpart in New York State. Some people file with the SDHR instead of the EEOC. If the SDHR issues and "probable cause" finding, the case can proceed to an evidentiary hearing before an administrative law judge. The losing party can then appeal to state court. That's what happened here, with interesting results.

The case is In the Matter of Delkap Management, Inc. v. New York State Division of Human Rights, issued by the Appellate Division Second Department on April 5. The plaintiff moved into a housing complex in 1988. She has rheumatoid arthritis. In 2010, her daughter moved in, bringing a dog with her, in violation of the "no dog" policy. Plaintiff sought a reasonable accommodation that would allow her to keep the dog. Her doctor also sent the property management people a letter asking that she keep the dog as well as her parking space near her apartment due to her disability. Defendant instead directed her to remove the dog and fined her for breaking the rules. After plaintiff filed a SDHR complaint, management told plaintiff she would be evicted if she did not get rid of the dog and it revoked her parking privileges. An SDHR judge ruled in plaintiff's favor on her disability discrimination and harassment claims and fined the housing management company.

The Second Department resolves this appeal as follows:

1. The discrimination claim is thrown out even though the SDHR ALJ ruled in plaintiff's favor. While she "demonstrated that she was disabled and was a shareholder in the Coop" and "submitted evidence that the dog helped her with her symptoms by easing her stress and causing her to be more active," she "failed to present medical or psychological evidence sufficient to demonstrate that the dog was actually necessary in order for her to enjoy the apartment." Why is this? Because plaintiff "had resided in the apartment for more than 20 years without the dog. Moreover, the complainant was diagnosed with her disability several years prior to the dog being brought to the apartment by the complainant’s daughter when she moved in with the complainant. The dog was present in the apartment for only two weeks before the complainant asked the Board for a reasonable accommodation." If you are familiar with how federal appellate courts review trial court verdicts, this reasoning seems out of place. It looks like the Second Department is independently reviewing the evidence, which the appellate courts in New York are allowed to do.

2. The retaliation verdict stands, however. Plaintiff proved that she participated in the protected activity of filing an SDHR discrimination complaint, and there was a causal connection between the protected activity and the petitioners’ retaliatory conduct, which included taking away the complainant’s designated parking space for a nine-day period, refusing to accept her maintenance checks, filing eviction proceedings against her, falsely informing her that the SDHR had ruled in the petitioners’ favor, and directing her to immediately remove her dog from her apartment." You read that right. After plaintiff filed her SDHR charge, defendant falsely told her that the SDHR had ruled against her even though it had not done so. Plaintiff also proved she suffered adverse actions, which had caused her to suffer the following:

The complainant established that the adverse action taken by the petitioners caused her
to be confined to her home for the nine days that the designated parking space was taken from her because of the distance between her home and the alternative, designated space assigned to her, that she had to defend against eviction proceedings, and that she was directed to immediately remove the dog which caused her to move out of her apartment with her dog. In response to the complainant’s prima facie showing of retaliation, the petitioners failed to present legitimate, independent, and nondiscriminatory reasons to support their actions.
This reasoning is more like what we see in the federal appellate courts in reviewing a favorable jury verdict.

3. But consider what happened with the damages. The SDHR awarded plaintiff $5,000 in mental anguish and $10,000 in punitive damages, plus a $5,000 penalty against defendant, to be paid to the State. Since only the retaliation claim survives appeal, that award has to be modified. In itself, the original award is modest, but par for the course in the SDHR, which does not allow plaintiffs to break the bank. Here is now the Second Department summarizes the pain and suffering on the retaliation claim:

Here, the petitioners retaliated against the complainant by revoking her parking privileges in connection with her designated parking space after she filed an action with the SDHR. The petitioners also moved to evict the complainant and caused her to move out of her home by informing her, erroneously, that the SDHR had ruled against her and that she had to immediately remove her dog from her apartment. The complainant testified that, as a result of the petitioners’ retaliatory conduct toward her, she experienced mental anguish during the period of time that she was trapped in her apartment due to the loss of her designated parking space, when she had to go to housing court for the eviction proceedings, and when she moved out of her apartment due to the petitioners’ false directives that SDHR had ruled against her and the dog had to be immediately removed. The complainant also showed that the stress caused by the mental anguish exacerbated her physical condition and, on March 24, 2011, she was admitted to the hospital complaining of nausea and experiencing palpitations.
This looks like serious pain and suffering, no? The Appellate Division says it is worth no more than $2,500. The Appellate Division also thinks the punitive damages award cannot exceed $2,500. The same amount applies to the civil penalty that defendant pays to the state. The total monetary result is $7,500. A jury would have awarded much more money than this.

Wednesday, November 30, 2016

Police directive to leave the building in a certain way does not violate Constitution

The police arrested plaintiff's designated driver and told him to leave his friend's apartment and to leave the neighborhood. They even told him to walk a different direction down the street. When he followed the police's directive, plaintiff was attacked by someone with a machete. Somewhere in the mess there has to be a lawsuit, right?

The case is Urbina v. City of New York, a summary order decided on November 29. Urbina has an experienced lawyer who comes up with a few interesting theories about police liability. Plaintiff says he was in "constructive custody" at the time he was attacked because the police told him to leave the apartment and proceed away in another direction. The Supreme Court recognizes that some people are in police custody even if they are not in handcuffs if they are not free to leave a particular location. The Court of Appeals (Cabranes, Parker and Pooler) is not buying it. Plaintiff's lawsuit concedes that after the police told him to leave the apartment, he intended to enter a store to buy some food and then head home (or even return to the apartment). This means, the Court says, that plaintiff was in fact free to leave. There was no seizure under the Fourth Amendment.

Plaintiff also sues the police under the "Right to Travel" theory. The Constitution recognizes such a theory, but it is quite narrow, thanks to Williams v. Town of Greenburgh, 535 F.3d 71 (2d Cir. 2008) (a case I argued), which says the right protects movement between places and has no bearing on access to a particular place. While plaintiff says the police directive that he leave the apartment and to travel east instead of west restricted his movement in violation of the Constitution, that does not cut it, the Court says, because "minor restrictions on travel do not amount to the denial of a fundamental right" under the Constitution.

Wednesday, November 23, 2016

Sexual harassment against inmate may violate the Constitution

You can't just smack the inmates around. The Constitution forbids it. The inmate in this case filed a lawsuit in the Southern District of New York, which dismissed the case because the judge said he alleged isolated but "despicable" incidents of sexual harassment by a prison guard. The Court of Appeals reverses.

The case is Shannon v. Venetozzi, a summary order decided on November 15. This is what the plaintiff alleged happened to him:

Shannon alleged that on at least four occasions, before he was allowed to use the bathroom during prison visits from his wife, Officer Jermaine McTurner required him to undergo “aggressive and very provocative” pat-frisk searches, during which the officer “hit [Shannon’s] genitalia hard,” “rammed his hands into [Shannon’s] testicles very hard,” “fondl[ed Shannon’s] genitals,” and “rubbed his buttocks.” Shannon also alleged that Officer McTurner told him that “if you don’t want to be searched and sexually assaulted, stop coming to prison,” and that, when Shannon complained that Officer McTurner was violating prison policy and procedure by searching him in the middle of visits with his wife, Officer McTurner stated, “I don’t give a fuck about no P&P. This is my visiting room and I run it the way that I want.”
The district court said this was despicable, but isolated, so it did not violate the Eighth Amendment prohibition against cruel and unusual punishment. The court relied in Boddie v. Schneider, 105 F.3d 857 (2d Cir. 1997) for this proposition. But, the Court of Appeals (Katzmann, Wesley and Carney) says, more recent precedent guides this case, Crawford v. Cuomo, 796 F.3d 252 (2d Cir, 2015), which says "A corrections officer’s intentional contact with an inmate’s genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer’s sexual desire or humiliate the inmate, violates the Eighth Amendment.” In addition, under Crawford, “In determining whether an Eighth Amendment violation has occurred, the principal inquiry is whether the contact is incidental to legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast whether it is undertaken to arouse or gratify the officer or humiliate the inmate.”

Since even less severe but repetitive conduct may be egregious enough to violate the Constitution, and "conduct that might not have been seen to rise to the severity of an Eighth Amendment violation 18 years ago may now violate community standards of decency," plaintiff -- who handled this appeal pro se -- states a claim. The case heads back to the trial court for discovery.

Tuesday, November 22, 2016

School district gadfly wins free speech retaliation appeal

This public school teacher was suspended and faced disciplinary charges only one month after he filed an Article 78 petition alleging the Board of Education had violated the Open Meetings Law. He sued under the First Amendment, but the district court threw out the case prior to trial. The Court of Appeals reinstates it, issuing one of the more interesting summary order rulings I've seen this year.

The case is Zehner v. Jordan-Elbridge Board of Education, a summary order decided on November 18. This is a non-precedential ruling, but it provides good insight into how these cases work. While teachers have some First Amendment rights and cannot suffer retaliation for exercising those rights, school districts and other public employers have a variety of defenses that can kill off your case.

There seems to be no issue whether the Article 78 petition is First Amendment speech. Defendants must have conceded that issue and went for its other other defenses: (1) there is no connection between the free speech and Plaintiff's suspension. The Court of Appeals (Walker, Chin and Hall) notes that "not even a month after instituting an Article 78 proceeding, in which Zehner alleged the Board violated New York's Open Meetings Law -- an allegation ultimately decided against the Board -- Zehner was suspended and faced discipline charges. That month-long gap is short enough to draw the inference that the Board had retaliated against Zehner.

While the causation issue is run-o'-the mill, the Mount Healthy issue is not. Mount Healthy is a constitutional doctrine that says that even if the defendant retaliated against the plaintiff in violation of the First Amendment, the defendant still wins the case if it proves that it would have targeted the plaintiff anyway, even without the free speech. Applying this principle in its elementary form, let's say Johnny Fungo works for a government office. Johnny sucks at his job and got caught faking his time sheets. At the same time, Mr. Fungo blew the whistle on rampant fraud at his agency. Management can't take it anymore and fired Johnny two weeks after the whisteblowing. While the termination was motivated in part by the free speech, let's face it, he would have been fired anyway because of the recent time sheet shenanigans. That's how Mount Healthy works.

In this case, the jury must decide whether the school district can invoke Mount Healthy. On the summary judgment motion, the district's witnesses attested that Zehner was going to be disciplined even without the speech, but the Court of Appeals says this is speculative: "it is insufficient to show that the Board might have or could have suspended or disciplined Zehner on some legitimate grounds." The Court cites Smith v. County of Suffolk, 776 F.3d 114 (2d Cir. 2015), for this proposition. While the Board introduced counseling memos to show that it was worried about plaintiff's workplace issues, they "merely show that the Board was concerned over rather minor and trivial issues involving Zehner," such as missing camera equipment, poor written communication skills and failure to follow school district procedures for various issues. These do not seem like trivial issues, but, the Court of Appeals says, "only two memos mention possible further investigation and disciplinary action based on inappropriate comments to students." The Court goes on to reason:

Considering that the Board did not bring complaints against Zehner until approximately seven months after the issuance of these two memos and after Zehner had prevailed on his first Article 78 action, and viewing the evidence in the light most favorable to Zehner, it is difficult to find a reasonable, non-retaliatory connection between Zehner's alleged misconduct and the actions the Board took against him. On the present record, viewed as we must view it, it cannot be said that the Board has established by a preponderance of the evidence that it would have suspended Zehner and filed disciplinary charges against him even in the absence of his protected First Amendment conduct. It is inappropriate, therefore, to grant defendants summary judgment on these grounds. Instead, it should be left to a jury to determine whether the Board's justifications for its actions were merely pretext for retaliation in response to Zehner's protected conduct.
Zehner prevails on other issues in this appeal. He was kicked out of Board of Education meetings, allegedly because of his disruptive behavior at meetings. It appears he spoke loudly at meetings and spoke over his allotted time. But the Court of Appeals says this was not so disruptive as to warrant his expulsion from meetings. 
On top of that, plaintiff prevails on a claim under NY Education Law 3028-d, which is quite obscure for most of us. It says you cannot retaliate against a school district employee for reporting on financial practices that violate laws or regulations. While the district court said this claim must fail because plaintiff did not cite a specific law or regulation that the Board had violated, the Second Circuit says he was not required to do so. All plaintiff  needed to show was that he held a reasonable belief that the Board had engaged in illegal financial practices. As the Circuit cites a State Supreme Court ruling for this point, it's fair to say the Second Circuit has never previously resolved a claim under Education Law 3028-d.

Monday, November 14, 2016

School can restrict religious postings in the classroom

This teacher posted religious postings in her classroom. The school district told her to remove the postings. The plaintiff sues the district under the First Amendment. She loses in the district court, and the Court of Appeals affirms the dismissal.

The case is Silver v. Cheektowaga Central School District, a summary order decided on November 8. Teachers have speech rights under the Constitution, but those rights are limited. You can say whatever you want on the streets, but schools have authority to control speech within the four walls of the classroom. That control includes certain political speech, but it also covers religious speech. This where two clauses in the First Amendment intersect. The free speech clauses says you can say whatever you want. The Establishment Clause says the government cannot promote religion. In the public school context, districts have authority to regulate what the students hear.

As the Court of Appeals (Katzmann, Wesley and Carney) notes, "schools may direct teachers to refrain from expression of religious viewpoints in the classroom and like settings," and "schools have a constitutional duty to make certain that subsidized teachers do not inculcate religion." The Court further notes that "when government endeavors to police itself and its employees in an effort to avoid transgressing Establishment Clause limits, it must be accorded some leeway."

Thursday, November 10, 2016

Don't accept suspicious packages from the post office

This case hits home because it took place in my hometown, a few blocks from where I was living at the time. A businessman accepted a package on behalf of someone else and was then detained by the police because the package was suspicious. The package had marijuana in it, and the intended recipient of the package was a fake name. The Grand Jury declined to indict the businessman, who sues for false arrest.

The case is Kerr v. Morrison, a summary order decided on November 4. The police detained Kerr because other suspicious packages from California to New Paltz had already led to someone's drug-related arrest. The address on the package that Kerr had accepted (two offices and an apartment) had previously received two questionable packages for someone who did not exist. The return address was also fictitious and the package was excessively taped, a tell-tale sign of a drug parcel. Also, the mailing label on the package bore a number sequential to that on a prior suspicious package even though they were sent from different post offices under different names and on different dates. So something funny was going on.

Under the circumstances, the police had the legal right to detain Kerr when he agreed to accept the package. We call this a Terry stop, named after a 1968 Supreme Court decision that tells us when the police may detain you for questioning upon reasonable suspicion that criminal activity is afoot. While Kerr said nothing connected him to the package, the Second Circuit (Leval, Raggi and Sack) says the evidence suggests otherwise, and "his contention that he was accepting the package for an upstairs tenant rather than himself does not vitiate the reasonable suspicion for officers to stop him while they investigated further." Since a police doggy later found drugs in the package, moreover, the police had probable cause to arrest plaintiff for his alleged role in a drug transaction.

A side issue here: the police handcuffed Kerr after they stopped him. Kerr says this cuffing violated the Fourth Amendment because there was no probable cause to arrest him for drugs. The Court does not have to resolve this issue because the law was not clearly established at the time that "the law was not sufficiently clear to alert every reasonable official that Kerr's handcuffing incident to a Terry stop was unconstitutional in this case" and "the use of handcuffs during an investigative stop was not then -- and is not now -- per se unconstitutional." Since the law was not clearly established, the officers are entitled to qualified immunity.


Wednesday, November 9, 2016

The dreaded reorganization

Here is the timeline for the plaintiff's Family and Medical Leave Act claim: Plaintiff was Deputy Executive Director of Special Education for a Bronx organization that served Bronx schools. On June 18, 2010, she requested FMLA leave for health reasons. On June 24, plaintiff was fired. Plaintiff's FMLA leave was approved on June 26 through her termination date.

The case is Douyon v. New York City Department of Education, a summary order decided on November 7. It sounds like FMLA retaliation, but the Court of Appeals (Livingston, Calabresi and Rakoff [D.J.]) says it was not. Plaintiff makes out a prima facie case, but she cannot show the employer's reason for terminating her employment was pretextual. The reason was the company reorganized. Five positions were eliminated on the same day. While the Central Office hired two people at this time, they got their new jobs before plaintiff had even requested FMLA leave. Plaintiff produced no evidence that defendant would have hired instead of the others.

What we have is a case of bad timing for plaintiff. Few discrimination cases survive evidence that management had downsized or reorganized. I have seen cases where lawyers argue that management got rid of other people in order to get rid of the plaintiff in order to make it look like a reorganization. Courts will not buy that argument. It sounds too fanciful, and they do not think a reasonable jury will buy it, either.

Plaintiff also sues for sexual harassment. The Court does not tell us about the harassment, but harassment is not enough to win a harassment suit. You have to show the employer failed to deal with it, which means you have to show the plaintiff complained about it. The Second Circuit finds that plaintiff "admitted that she failed to take advantage of [the defendant's] procedures." Her excuse was that she feared retaliation. But the courts have been rejecting that excuse for years. "A credible fear of retaliation must be based on more than then the employee's subjective belief," the Court of Appeals notes.