No qualified immunity where town official called the plaintiff a "Guinea"

This kind of stuff happens all over, and it happens in upstate New York also. A property owner claims the town unfairly applied the zoning laws against him because he is Italian. He sues under the Equal Protection Clause. The trial court denied the town's summary judgment motion, and the town takes up an immediate appeal on qualified immunity grounds. The Court of Appeals denies the appeal and the case heads for trial.

The case is Savino v. Town of Southeast, a summary order decided on July 7. The Court of Appeals (Cabranes, Carney and Droney) says, "As direct evidence for this discrimination, Savino points to a dispute over whether he had a proper zoning permit to install a sign. He alleges that at that time Tessmer handed him a cease-and desist order and told him, 'You Guineas think you can get away with anything.' Savino also points to two neighboring businesses he claims are similarly situated, but which were not prosecuted for zoning violations."

Whether this statement was made cannot be determined on the paper record. That's what juries are for. The town argues that a jury is unnecessary because, objectively speaking, it did not violate the plaintiff's rights. That argument works in many civil rights cases, but it does not work here. You can't brush away an alleged statement like this when you are moving for summary judgment. The court assumes the statement was made and then decides whether the defendant deserves qualified immunity. He does not.

The Court of Appeals sums it up as follows:

Assuming as we must that Tessmer made the “Guineas” comment that Savino imputes to him, there are genuine issues of material fact concerning whether Tessmer intentionally discriminated against Savino because of his Italian national origin. Given this direct evidence of discriminatory intent, the District Court properly concluded that summary judgment was inappropriate, because a reasonable juror could find that Tessmer violated the Equal Protection Clause by selectively enforcing the zoning laws against Savino, Inc., on the basis of Savino’s national origin. It is inappropriate to review that decision here. Rather, the issue of whether it was objectively reasonable for Tessmer to believe his conduct did not violate clearly established law requires resolution of genuine factual disputes as to what Tessmer’s motivations were, which cannot be resolved on this appeal.

Subtle racial comments support Title VII discrimination case

The Court of Appeals infrequently reverses summary judgment in racial discrimination cases. Purely circumstantial evidence does not seem to cut it these days. In this case, the case is remanded for trial because of not-so-subtle racial comments by a decisionmaker about why plaintiff was fired. Also, some pretext.

The case is Kirkland v. Cablevision Systems, decided on July 25. The Court of Appeals (Calabresi, Lohier and Lynch) summarizes the evidentiary model governing Title VII cases: the plaintiff has to make out a prima facie case of discrimination and, if the employer articulates a neutral reason for the plaintiff's termination, he has to show that reason is a pretext for discrimination. That all sounds complex, but in this case the Court of Appeals does not further delve into that complexity. While the employer said plaintiff was fired because of poor performance reviews and affidavits from regional managers whom plaintiff supervised, the Second Circuit gets right to the good stuff: an admission from the decisionmaker:

Kathryn Nivins, an Asian‐American female whom Robert Cockerill hired to replace Kirkland, testified that Cockerill explained Kirkland’s termination by criticizing Kirkland’s failure to discipline one of his regional managers (all of whom were African‐American). Nivins testified that Cockerill told her that Cockerill “ha[d] come to learn that they don’t know how to police each other.” Nivins also testified that, during her interview, Cockerill gave her an “overview” of these managers’ strengths and  weaknesses, explaining that “his opinion was that [the regional office] could lighten up a bit.”

The manager did not come out and say that plaintiff was fired because he was black, but it comes close. While the Court of Appeals does not provide a tutorial on when subtle code-words support an inference of discrimination, the inference is clear: saying out loud that "they don't know how to police each other" and that the regional officer "could lighten up a bit" speaks for itself.

The record contains more of this kind of subtle racism. When plaintiff gave a presentation at work, Cockerill cut it short and said the presentation "used a colored background and that there is no room for color in a business presentation" and "white was better than color." I suppose Cockerill can argue that these references to color speak to something else, but a jury can infer that "color" means black.

We also have some traditional pretext, the kind that plaintiffs usually have to rely upon in avoiding summary judgment in the absence of racial code-words. Plaintiff claims that management back-dated his performance evaluations to support their decision to fire him. Nivins testified that Cockerall asked her for negative information on plaintiff right after plaintiff brought the lawsuit. Cockeril "turned against her" when she "didn't have that information for him." In addition, management ignored plaintiff's internal discrimination complaints, and Nivins testified that she believed Cockerill hired her as cover because she had a black fiance and could fire black employees in Kirkland's former region. Nivins also testified that she thought Cockerill was a racist and that another Cablevision manager said Cockerill "is known as the KKK without the hood."

Some of this evidence is unusual since it stems from witness impressions about management's state of mind. But the Court of Appeals says all of this is for the jury, which "might credit all of this proffered evidence, some of it, or none at all. But that is 'left for the jury to decide at trial.' And if at least some of this evidence is believed by a jury, that jury could also conclude that, despite Kirkland's negative performance reviews, his firing was 'more likely than not based in whole or in part on discrimination."

State Court of Appeals strikes Albany County cyberbullying law as unconstitutional

Social media is a wonderful thing, but not when malicious teenagers get their hands on it. In this case, a high school student began bullying classmates on Facebook. As the New York Court of Appeals summarizes the case, "He anonymously posted photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information. The descriptive captions, which were vulgar and offensive, prompted responsive electronic messages that threatened the creator of the website with physical harm." He was prosecuted under an Albany County law that prohibited cyberbullying. The New York Court of Appeals has now struck down that law as unconstitutional.

The case is People v. Marquan M., decided by the New York Court of Appeals on July 1. Under the law, cyberbullying is defined as follows:

any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person

The First Amendment requires that laws clearly tell the world what is illegal. Otherwise, the statute is void for vagueness. The law also cannot be overbroad, i.e, it cannot prohibit both illegal and legal behavior. These statutes that regulate speech have to be carefully drawn to withstand a constitutional challenge. I am sure the County legislators did their best here, but their best is not good enough. The law is stricken.

The Court of Appeals writes that "it is evident that Albany County create[d] a criminal prohibition of alarming breadth. The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children. As written, the Albany County law in its broadest sense criminalizes 'any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person.' On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children."

In addition, the law "lists particular examples of covered communications, such as 'posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail.'" The problem is that

such methods of expression are not limited to instances of cyberbullying -- the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to "harass, annoy . . . taunt . . . [or] humiliate" any person or entity, not just those that are intended to "threaten, abuse . . .intimidate, torment . . . or otherwise inflict significant emotional harm on" a child. In considering the facial implications, it appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.

The Court of Appeals recently struck down the State's Aggravated Harassment law because it also covered too much speech and was prone to abuse by prosecutors. This decision falls in line with the Aggravated Harassment ruling.

Vermont electioneering laws are constitutional.

In a complex ruling that explores the contours of the First Amendment rights of activist organizations, the Court of Appeals rejects a challenge to various electioneering laws by a Vermont right-to-life organization. This case is probably on its way to the Supreme Court.

The case is Vermont Right-to-Life v. Sorrell decided on July 2. This is a long decision (84 pages), so let's go through the challenges one by one.

First, Vermont law says that electioneering communications -- defined as those that advocate for or against a candidate in the form of TV or billboard (and other) advertising -- must identify the name and address of the person or organization who paid for the advertising. This rule -- governing communications that "promote," "support," "attack" or "oppose" -- is not unconstitutionally vague. Nor is it vague to regulate communication "on behalf of" a political committee or political party. The word "expenditure" is also not vague. The same holdings apply to the Vermont requirement that a person engaging in certain mass media activity must report to the government who paid for that activity and the name of any candidates featured in that activity.

More broadly, these rules satisfy constitutional standards. Of course, no political organization wants to report this information to the government. But, the Second Circuit (Wesley, Droney and Briccetti [D.J.]) says, they serve the public interest. One provision says the campaign has to notify the government some particulars about the advertisements. "By alerting candidates whose image or name is used, the reporting requirement will identify the source of election-related information and encourage candidate response. And by requiring that the speaker notify the candidate whose image or name was used, the provision brings so-called 'whisper campaigns' into the sunlight and also helps ensure that candidates are aware of and have an opportunity to take a position on the arguments being made in their name."

Also under Vermont law, certain political action committees must make all expenditures from a single checking account, file reports with the government identifying financial contributors and cannot accept more than $2,000 from a single source in a two-year election cycle. The definition of "political committee" is not vague. More broadly, this provision does not squelch free speech. PAC's need only disclose transactions that support or oppose a candidate. "The disclosure regime is substantially related to the recognized government interest in providing the electorate with information about the sources of election-related spending."

The $2,000 PAC contribution limits are also legal. Unlike expenditure limits -- which are legal only if they prevent the actuality or appearance of quid pro quo corruption -- contribution limits are more easily regulated because they only indirectly constrain speech and associational rights.The right-to-life people argue that the law is structured in a way that harms them under the First Amendment, that there cannot be a quid pro quo the RTL Fund for Independent Expenditures is enmeshed financially and organizationally with a related RTL organization that makes direct contributions to candidates.

No doubt all of this is confusing. Campaign finance law is complex because the Supreme Court has distinguished between expenditures and contributions, and because the First Amendment itself is complicated in this area. Now that the Supreme Court is striking down campaign finance laws left and right, this case is certainly ripe for Supreme Court review.

Court of Appeals revives Fair Housing Act claim

This housing discrimination case alleges that a senior citizens' mobile home community discriminated against an elderly couple by denying them a chance to live there because of their disabled son. The district court dismissed the claims mid-trial, but the Court of Appeals reinstates them and says the plaintiffs have a claim under the Fair Housing Act.

The case is Olsen v. Stark Homes, decided on July 18. After the Olsens told the housing community that their 42 year-old clinically depressed son had to live with them, their application to live there was denied. When a non-profit housing organization sent in "testers" to see if younger "applicants" or those without disabled children were allowed to live there, some of these applicants were apparently given the green light. When the case went to trial, after a few days, the district court dismissed the case and discharged the jury, ruling that there was no evidence that the son's disability was the reason why his parents were denied the housing opportunity. The Court of Appeals (Kearse, Jacobs and Parker) disagrees and reinstates the case for a new trial.

The district court said there was no evidence that the son's disability was the reason why the parents were denied the right to live there. In doing so, the court violated a basic principle governing motions to dismiss: it must view the evidence in the light most favorably to the plaintiff in determining whether the plaintiff has a case. For you non-lawyers, the theory behind this is that the jury may also view the evidence favorably to the plaintiff and disregard the defendant's evidence. Only by taking the plaintiff's side of story as true can the trial court determine whether the plaintiff has a chance to win the case. If in doubt, let the case go to the jury. This does not mean the plaintiffs will win the case. It only means they can win the case.

Here, the son's psychologist sent the housing community a letter that said the son was disabled. Defendants argued that the letter does not allow the jury to infer unlawful intent to discriminate, but the jury could draw different conclusions about defendants' motives from the content of the letter. As the Court of Appeals writes "there was ample evidence that the letter was provided in response to a concern expressed by Stark (the housing guy) as to whether, if Donald Jr. lived at Glenwood with his parents, he would be able, in light of his disability to get along on his own for short periods of time if they were not there."

The jury could draw other inferences favorable to plaintiff, including that (1) the parents were approved to live there without the son and that (2) Stark told the mother that he "didn't need any trouble in this park like that," and that "trouble like that" referred to the son's emotional illness. And, a tester was allowed to live there with a younger sister who was not disabled.

The reasonable accommodation claim under the Fair Housing Act was also improperly thrown out. Yes, the son was not 55 years old. But that is not why defendants sought dismissal of the accommodation claim. They argued instead that the son was not disabled and there was no evidence that defendants knew the son could not live without his parents. But the evidence permits contrary inferences: that the son suffered from major depression and that defendants knew that he had to live with his parents.

When the Court of Appeals reinstates a claim that was dismissed during trial (or that the district court rejects despite a plaintiff's verdict), the Second Circuit provides a good summary of the legal standards governing judgment as a matter of law under Rule 50. This case is no different. What the Court is saying is that close cases go to the jury. If the district court jumps the gun, particularly mid-trial, it runs the risk of setting up a re-trial.

Plaintiff alleges Title VII national origin discrimination claim

The Court of Appeals does not often reinstate discrimination complaints following dismissal in the district court, but it does so in this race and national origin discrimination case brought against a Japanese company that operated a subsidiary in Rockland County.

The case is Brown v. Daikin America, decided on June 27. Plaintiff worked for the Rockland entity. His workgroup consisted of six employees, three of them white Americans. The rest were Jamanese citizens of Japanese national origin. The Japanese employees had previously worked for the Japanese parent but wound up in the U S of A under a rotational assignment program that would last several years. During a reduction in force, plaintiff and another white American were fired. The other white American was transferred out. The three Japanese citizens remained employed in the Rockland group. In all, seven Americans lost their jobs in the RIF, but no Japanese employees were fired.

The question here is whether plaintiff makes out a prima facie case, which requires an allegation that he was fired under circumstances creating an inference of discrimination. "Defendants argue that Brown’s allegations do not support an inference of discrimination because the Japanese rotational employees at Daikin America were not 'similarly situated' to Brown and the other American employees. Therefore, defendants argue, the companies had no duty to consider the Japanese employees for termination as part of the workforce reduction, and Brown has not provided a basis for inferring that his termination was discriminatory." But that's not how the Court of Appeals (Carney, Lohier and Lynch) sees it.

Brown is "similarly situated" or comparable to the Japanese employees. They shared a common employer, the entity in Japan. All were subject to the same workplace standards in that he and two Japanese workers reported to the same supervisor."Drawing all reasonable inferences in Brown’s favor, as we must, both Brown and the Japanese employees in the Group are plausibly alleged to be subject to the same performance evaluation and disciplinary standards, and therefore similarly situated in their employment circumstances."

If you follow Iqbal-related developments, the Court's further reasoning will interest you. Under Iqbal, the Supreme Court said in 2009 that plaintiffs must allege plausible and not merely possible liability. This seemingly subtle change in legal standards under Rule 12 has doomed many cases. Defendant here argues that plaintiff does not allege a plausible case because there were other plausible non-discriminatory reasons for plaintiff's termination.Not so, the Court of Appeals:

That there may be other explanations for the defendants’ employment decisions does not render Brown’s allegations of discrimination inadequate as a matter of law. Whether there existed non-pretextual, non-discriminatory explanations for the defendants’ employment decisions — a question as to which the defendants bear the burden of production — is not properly decided on a motion to dismiss for failure to state a claim.

Serving two masters under Title VII

The old saying is that you can't serve two masters. But you can. Under Title VII, you can sue your immediate employer as well as another entity that also controls your employment. They are both on the hook for an unlawful employment practice if the entities are a "single integrated enterprise."

The case is Brown v. Daiken America, decided on June 27. Brown worked for Daiken America, which makes chemical products and is headquartered in Rockland County. Daiken is a wholly-owned subsidiary of Daiken Industries (DIL), a Japanese corporation. Claiming that defendants fired him because he is a white American, plaintiff sues both entities under Title VII. The district court said plaintiff cannot do this because the complaint does not sufficiently allege that the Japanese entity exercised sufficient control over the Rockland County workplace. The Court of Appeals (Carney, Lohier and Lynch) disagrees.

Here's the law on this: "[a] parent and subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Although no one factor is determinative . . . control of labor relations is the central concern." "The central question is what entity made the final decisions regarding employment matters related to the person claiming discrimination?"

Brown can sue the Japanese entity along with the Rockland County one because the Complaint adequately alleges centralized control over labor relations. The Court reasons:\

Here, Brown alleged that DIL "closely directed the operations of its wholly owned subsidiary, Daikin America" and that DIL’s approval‚ was required as to all significant actions by Daikin America." Compl. ¶ 5. Brown charged that DIL"immuniz[ed]" Japanese rotational employees from discharge by directing Daikin America to discharge only employees who were not Japanese, id. ¶ 39, and by prohibiting Daikin America from reassigning or discharging Japanese rotational employees, id. ¶ 25. Taken together, these allegations sufficiently suggest that DIL exercised centralized control over Daikin America’s decisions about which employees to terminate in the course of the workforce reduction, and that DIL, by protecting Japanese employees from discharge, effectively ensured that employees of other races or national origins, like Brown, would be terminated.

While Brown does not allege that DIL  participated in the decision to hire him or expressly directed that plaintiff be fired, and while he does not allege common management between the two entities, "at this early stage in the litigation, the control that Brown alleged DIL to have exercised over Daikin America's employment actions ... is adequate to sustain the action against DIL."