Age discrimination claims revived by Circuit

It took the Court of Appeals 17 months to issue this opinion, but the Circuit (Kearse, Sack and Stanceu) reinstated a dual-plaintiff age discrimination claim that included allegations of a hostile work environment. The Court on July 24 also clarified when plaintiffs may amend the Complaint in violation of the trial court's scheduling order.

Kassner v. 2d Avenue Delicatessen Inc. reminds us that time-barred allegations will go nowhere and that the statute of limitations for federal age discrimination claims is 300 days. State age discrimination claims carry a three-year statute of limitations. After reinstating a few claims on the basis that the plaintiffs timely filed the complaint, the Court of Appeals applied the lenient pleading standards under Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) in finding that job assignments to less desirable and profitable work stations and work shifts may be sufficiently adverse to withstand a motion to dismiss. Noting that speculative claims cannot save the Complaint (applying a recent Supreme Court decision, Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007)), the Court of Appeals read the Complaint as a whole in assuming that some new job assignments were less lucrative and thus sufficiently adverse to make the lawsuit worthwhile.

It's not everyday that the Court of Appeals resolves a hostile work environment case based on age. But the many claims here raised a harassment claim as well, and the Court of Appeals reinstated them for the first plaintiff, finding that repeatedly making degrading comments about age, "including, but not limited to, 'drop dead,' 'retire early,' 'take off all of that make-up' and "take off your wig'" are enough to prevail on an age harassment claim. Assuming the district court allows her to amend the Complaint (see below), the other plaintiff may also have an age harassment claim in light of allegations that a manager and co-workers continually verbally and physically abused her by, for example, kicking and spitting at her at management's direction. When this plaintiff complained about her suspension following this treatment, management said, "[i]f you don't like it, you can quit. Why don't you quit already."

This case is not so profound that the Court of Appeals had to wait over a year to issue the decision. Maybe it was the final holding interpreting the tension between Rules 15(a) and 16(b) of the Federal Rules of Civil Procedure. Tension between these rules? You bet! Rule 15(a) allows the plaintiff to amend the Complaint if the Answer has not been served. That is what happened here. Except that the scheduling order under Rule 16(b) gave the plaintiff an earlier deadline. "We hold that amendment of a pleading as a matter of course pursuant to Rule 15(a) is subject to the district court's discretion to limit the time for amendment of the pleadings in a scheduling order issued under Rule 16(b)." So Rule 16(b) trumps Rule 15(a).

After finding, as noted above, that the second plaintiff plead an actionable age harassment complaint in the proposed amended complaint, the Court of Appeals remanded the case for the district court to worry about whether (1) the plaintiff acted with due diligence and (2) the amendment would prejudice the defendants at this stage of the proceedings.

False arrest verdict reinstated

Qualified immunity is the wild card of federal civil rights jurisprudence. If the state of the law is vague, a government defendant cannot be liable in damages for the civil rights violation. Also, if reasonable public officials could disagree whether their actions violated clearly-established law, they cannot be liable in damages, even if 20-20 hindsight in the cold light of day shows they violated the plaintiff's civil rights.

In an epic 64-page decision handed down on July 20, 2007, the Court of Appeals (Kearse, Cabranes and Katzmann) untangled false arrest and qualified immunity principles in reinstating a jury verdict that the trial judge took away from the plaintiff post-trial. The appeals court found that the trial judge improperly failed to credit the jury's view of the evidence. In doing so, the Court of Appeals turns in a primer on false arrest and qualified immunity law.

Zellner v. Summerlin began when the plaintiff showed up at a demonstration. From that point forward, the parties disagreed about what happened next. Zellner and his witnesses testified that he did nothing wrong. The police witnesses testified that Zellner engaged in "passive resistance" and obstructed legitimate police business by encouraging other demonstrators to stage a sit-down despite police efforts to maintain order. Since the videotape was inconclusive about Zellner's alleged disorderly conduct, the case went to the jury, which ruled in Zellner's favor on the false arrest claim and awarded him $85,500 in damages.

The trial court threw out the verdict on qualified immunity grounds. Qualified immunity is exactly as it sounds: the police have immunity from suit, but that immunity is qualified. If reasonable officers could disagree about the legality of the arrest, owing to the split-second judgments that law enforcement must engage in when making certain decisions, then the defendant officers are immune from suit.

The problem with the trial court's ruling was that it did not view the evidence most favorably to Zellner's position. The court had to do this because we presume that the jury took the evidence in that light, or else it never would have ruled in Zellner's favor. Logical arguments favoring the police must be rejected under this model if the jury saw things differently. In the false arrest context, where probable cause is a defense to liability, the Court of Appeals noted that the real standard in the qualified immunity context is "arguable probable cause," which courts and attorneys misinterpreted for years to mean "almost probable cause," which lowers the bar for police officers making an arrest. But the Court of Appeals reminded us that "arguable probable cause" is not an easy fallback argument for police officers: "If officers of reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came close doe snot immunize the officer" from suit. The real inquiry is still whether "it was objectively reasonable for the officer to conclude that probable cause existed."

Under these standards, the Court of Appeals gave the plaintiff back his jury verdict. In doing so, the Court drew every inference in the plaintiff's favor, respecting the integrity of the jury's judgment. That it took the Court of Appeals 64 pages to flesh this out only confirms that false arrest and qualified immunity jurisprudence remains more complicated than we care to admit.

Circuit clamps down on threatening student speech

When Aaron Wisniewski sent his eighth grade friends an instant message depicting one of his teachers as a gunshot victim, he had no idea that it would result in a court decision that clarifies the standards governing student discpline in First Amendment cases. But it did. On July 5, 2007, the Court of Appeals cited a recent Supreme Court ruling on student speech in upholding a five-day suspension for an off-campus computer message that threatened a teacher by name.

Here are the facts:

Aaron's IM icon was a small drawing of a pistol firing a bullet at a person's head, above which were dots representing splattered blood. Beneath the drawing appeared the words "Kill Mr. VanderMolen." Philip VanderMolen was Aaron's English teacher at the time. Aaron created the icon a couple of weeks after his class was instructed that threats would not be tolerated by the school, and would be treated as acts of violence. Aaron sent IM messages, displaying the icon to some 15 members of his IM "buddy list." The icon was not sent to VanderMolen or any other school official. The icon was available for viewing by Aaron's "buddies" for three weeks, at least some of
whom were Aaron's classmates at Weedsport Middle School. During that period it came to the attention of another classmate, who informed VanderMolen of Aaron's icon and later supplied him with a copy of the icon. VanderMolen, distressed by this information, forwarded it to the high school and middle school principals, who brought the matter to the attention of the local police, the Superintendent Mabbett, and Aaron's parents.

Aaron was suspended for five days and sued the school district under the First Amendment, claiming that the instant message was harmless and took place off-campus. The Court of Appeals disagreed, noting as follows:

1. While hyperbole does not normally qualify as a "threat" under Federal law (under the Watts standard), cases involving public school students should be resolved under a broader standard. This distinguishes the Second Circuit from other courts which only allow school districts to discipline students for genuine threats of harm against school officials.

2. The better way to resolve this case is under the Tinker standard, named after a seminal Supreme Court case from 1969 allowing school officials to punish students if their speech (1) "would substantially interfere with the work of the school," or (2) cause "material and substantial interference with schoolwork or discipline," or (3) "would materially and substantially disrupt the work and discipline of the school" or (4) "might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities."

3. Unfortunately for Aaron, in Morse v. Frederick, the Supreme Court a few weeks ago interpreted the Tinker case to mean that school officials can discipline students for offensive speech if they "reasonably conclude that it will 'materially and substantially disrupt the work and discipline of the school.'"

4. Under this test, it was reasonable for school officials to believe that the offensive instant message would disrupt the school, even if it started off campus. "Even if Aaron's transmission of an icon depicting and calling for the killing of his teacher could be viewed as an expression of opinion within the meaning of Tinker, we conclude that it crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon would come to the attention of school authorities and that it would 'materially and substantially disrupt the work and discipline of the school.' For such conduct, Tinker affords no protection against school discipline."

Circuit clarifies attorneys' fee question, or does it?

Attorneys' fees awards are the bread and butter of a civil rights practice. If the lawyer wins the case, the loser pays her attorneys' fees under a federal statute, 42 U.S.C. sec. 1988. This represents an exception in American law. In most litigation in this country, each side pays its way. Not in civil rights cases. The theory behind making the losing defendant pay the plaintiffs' attorneys' fees is that most civil rights plaintiffs cannot afford counsel and the attorney has an incentive to take on the case, aware that victory means the defendant pays her fees, which can be substantial.

The Second Circuit Court of Appeals raised eyebrows a few months ago when it suggested that attorneys who represent the winning party in civil rights litigation may not be entitled to their full hourly rate. In Arbor Hill Concerned Citizens v. County of Albany, the Court (Walker, Jacobs and former Supreme Court Justice O'Connor) noted that the standard method of calculating attorneys' fees -- multiplying the lawyer's hourly rate by the number of hours expended on the case -- is not always a useful model. The real question, according to the Court, is what a paying client might pay for legal representation. The Court surprised the civil rights community with the following language:

In determining what rate a paying client would be willing to pay, the district court should . . . bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case. The district court should then use that reasonable hourly rate to calculate what can properly be termed the "presumptively reasonable
fee."

This complicates matters considerably. The Court presumes that some civil rights lawyers might be content to handle a case without charge (or at a reduced rate) in order to enhance their reputation, so if the attorney wins the case, his attorneys' fee award may be adjusted accordingly. The inquiry is theoretical. The Court of Appeals suggests that the attorneys' fee award turns on what a paying client might be willing to spend on the case, and that the client can negotiate a reduced rate by suggesting the attorney has something else to gain by handling the matter. But most civil rights plaintiffs have little if any money to finance their litigation. If the civil rights case is filed out of an important principle -- like a First Amendment or other case that does not produce a large damage award -- then most people would not pay a lawyer $250 or $300 to litigate the case. The lawyer takes the case because an important principle is at stake even if the damages are low.

Reputation does not pay the bills; money does. A lawyer may gain some reputational benefit from handling an important civil rights case, but that does not mean he should not be paid appropriately. Some of the most important civil rights cases ever filed generated minimal damages. Certainly, lawyers representing defendant corporations and municipalities get paid their market rate.

The lawyers in the Arbor Hill case petitioned the Court of Appeals to reconsider its opinion. Last week, the Court amended its opinion, dropping a footnote stating:

Our decision today in no way suggests that attorneys from non-profit organizations or attorneys from private law firms engaged in pro bono work are excluded from the usual approach to determining attorneys' fees. We hold only that in calculating the reasonable hourly rate for particular legal services, a district court should consider what a reasonable, paying client would expect to pay. . . . Attorneys -- regardless of whether they are pursuing litigation on behalf of a paying client or a non-paying client -- should receive out-of-district fees only if a reasonable, paying client would have retained out-of-district counsel.

Lawyers involved in the case say the footnote does not necessarily clear up the confusion. This kind of attorneys' fee jurisprudence may wind up in the Supreme Court. That's not a good thing. The Court has limited attorneys' fee awards over the past 15 years, ruling that nominal damage awards may not justify a fee award and also that the plaintiff is not entitled to attorneys' fees if he wins the case after the defendant moots out the case by providing him the relief before the judge can issue a ruling. For now, resolution of attorneys' fee awards will depend on the trial judge.

College student editors survive summary judgment in First Amendment case

When the activist student newspaper at the College of Staten Island devoted an issue to its favored student council candidates, the College administration nullified the election when each of these candidates won the election. The student editors sued the College administration under the First Amendment. Ruling in favor of the editors, the Court of Appeals used this case as a vehicle to clarify the First Amendment rights of college students, prompting a most unusual dissent from a Circuit judge who admittedly refused to read the 44-page majority opinion, issued on July 13, 2007.

Citing cases from around the Circuits, the majority (Calabresi and Walker) noted that college newspapers edited by students are limited public forums, which means the college cannot control content on the basis of viewpoint. "We agree that, at a minimum, when a public university establishes a student media outlet and requires no initial restrictions on content, it may not censor, retaliate, or otherwise chill that outlet's speech, or the speech of the student journalists who produce it, on the basis of content or viewpoints expressed through that outlet."

The problem was that the College President, Springer, testified that the newspaper had to cover the election equally, providing a platform for both sides. "President Springer's nullification of the election due to the May 1997 issue of the College Voice was premised on two types of viewpoint discrimination relating to the subject of student elections. First, Springer's action was driven by her belief that only one perspective was acceptable for speech on student elections in a student newspaper -- a viewpoint that reflected a balanced view of the candidates -- and that contrary views -- including that certain candidates should be elected -- was inappropriate. Second, Springer's testimony reveals that her nullification of the initial election was premised on her belief that the College Voice's view as to the importance of electing the Student Union slate, as reflected in the presentation of the content promoting those candidates, was improper and should be excluded from the limited public forum of the student newspaper."

In cancelling the student elections on the basis of the newspaper's "unfair" pre-election coverage, the College violated the editor's First Amendment rights because cancellation chilled the newspaper's speech. The editors testified that they had to watch what they published in the future to avoid risking the College administration's wrath. Although no case with these precise facts had ever come before the Second Circuit, the unlawfulness of Springer's actions was apparent at the time, killing her qualified immunity defense.

The case is remarkable on its own, since it's the rare College administration that cancels a student election because of an outspoken student newspaper. For constitutional law practicioners, this case offers an expansive view of what constitues a chilling effect in order to claim injury under the First Amendment. It also offers a generous view on qualified immunity.

But what makes this case even more noteworthy is Chief Judge Jacob's dissent, in which he acknowledges declining to read the majority opinion (even though it clarifies the rules governing college student speech) as "this is not a case that should occupy the mind of a person who has anything consequential to do." He adds, "this is a case about nothing" and chides the students for their radical political views. "With due respect to my colleagues in the majority, and to whatever compulsion they feel to expend substantial energies on this case, I fear that the majority opinion (44 pages of typescript) will only feed the plaintiffs' fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island. Contrary to the impression created by the majority's lengthy formal opinion, this case is not a cause celebre; it is a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit." The footnote then re-publishes some of the more provocative and, in Chief Judge Jacobs' view, pathetic student writing in the newspaper.