No judicial disqualification in freelance class-action case

This is not a civil rights case, but it's too interesting to ignore. A class action lawsuit filed on behalf of freelance writers suing certain publishing companies found its way to the Court of Appeals, where the judges on the panel realized they have a slight personal interest in the outcome, probably since one of the defendants is West Publishing, which publishes a variety of legal materials. The Second Circuit tackled this potential ethical issue head-on, determining that two of the judges ruling on the settlement can decide the case on the merits.

The class action alleged that freelance writers were not being sufficiently compensated when publishers later reproduced their material without their consent. The Supreme Court in 2001 addressed this issue in New York Times v. Tasini, 533 U.S. 483. The district court approved the settlement but, since some class members objected, the case went to the Second Circuit. That's where things get interesting.

The Court of Appeals, like most courts, operates without much sunlight until it issues a ruling. We don't know what the judges say to each other or how much difficulty the judges had in reaching a decision. But in Re: Literary Works in Electronic Databases Copyright Litigation, issued on November 29, Judge Walker explained why the Court determined to reach a decision in this case even though the judges have a small financial stake in the outcome of the case. Judge Walker wrote:

On March 6, 2007, after extensive pre-argument preparation, Judge Winter and I realized that there was a high probability that we held copyrights in works, such as law review articles and speeches, reproduced on defendants' databases. At oral argument on March 7, we publicly stated in open court that we would forego any financial interest in the settlement that we could possibly have now or in the future. No party brought to our attention that, because the claims period had expired without either of us asserting a claim, we were at that point ineligible to recover anything in the class action in any event.

The Court then asked the Committee on Codes of Conduct of the Judicial Conference for an opinion on whether Judges Winter and Walker should recuse themselves from the case. The committee answered in the affirmative and said they should not serve on the panel. Disagreeing with that opinion, Judges Walker and Winter decided to rule on the case anyway, reasoning that the law governing recusal is "at least ambiguous as to whether it should apply to judges who are parties to a lawsuit simply because they possess a small financial interest in one of the parties or in the subject matter of the litigation."

In ruling that recusal is not necessary in this case, the judges noted that most of their colleagues on the Second Circuit and probably all members of the Supreme Court would have at least some financial interest in a case like this, and "a reasonable person would not have know that we were class members prior to March 6, when our pre-argument preparation led us to that conclusion." Moreover, the judges told the parties in open court that they were going to forego any rewards from the class action settlement. The decision on the merits, also issued on November 29, is here.

Sexual harassment case against Fordham goes forward

Not that we're keeping score, but for the second time in two days, the Second Circuit has reversed the dismissal of an employment discrimination case, sending the case back to the district court for further proceedings. The moral of the story is that supervisors who watch pornography in the workplace are asking for a lawsuit.

The case is Patane v. Clark, decided on November 28. As alleged in her Complaint, Patane was a secretary at Fordham University, where one of her supervisors, Clark, "engaged in inapporpriate sexually-charged conduct in the workplace," including spending substantial time watching pornography on the office television and using Patane's computer to view hard-core pornographic websites. Patane also had to open Clark's mail, which included pornographic videotapes. Patane complained to a college EEO official who did nothing other than pass along the complaint to a college administrator. Clark, meanwhile, retaliated against Patane because of her complaints, removing nearly all her job responsibilities and keeping her out of the "loop" on office matters. One of Clark's friends furthered that campaign of retaliation when he became Chairman of an academic department, issuing a pretexual performance evaluation and attempting disciplinary action against her. The district court dismissed the case under Rule 12(b) because the Complaint failed to state a claim.

The Court of Appeals (Calabresi, Wesley and Brieant) disagreed, but not before pausing to affirm the district court's holding that the Complaint did not properly allege gender discrimination. Instead, drawing a subtle distinction, the Court of Appeals found that Patane did properly plead a hostile work environment based on gender. The mere presence of pornography in the workplace is enough to create a hostile work environment, even if, as the district court noted, plaintiff was not forced to watch it. Since some of the pornography was in the mail that Patane opened and it was also in her own computer, she has a viable sexual harassment claim. Nor does it matter that men were also exposed the to pornography in the workplace. It's offensive to women, and that's enough for a sexual harassment claim.

Patane also has a viable retaliation claim. We can infer that her immediate supervisor, Clark, knew about Patane's complaints about the harassment since "she complained about Clark's conduct to a Fordham employee whose job it was to investigate and receive such complaints." We also assume that "general corporate knowledge" about the complaints brought them to Clark's attention. While the district court ruled that Patane's job restrictions in the wake of her complaints were not sufficiently severe for a lawsuit, they still qualify as "adverse employment actions" because Clark removed nearly all her job duties. That's enough under Second Circuit precedent. It's also enough under a recent Supreme Court case, Burlington N. & Santa Fe v. White, 126 S.Ct. 2405 (2006), which holds that an "adverse employment action" consists of an employer response that would dissuade any reasonable employee from filing an internal complaint. The twist here is that, although Patane did complain a second time, holding the second complaint against her "would require that no plaintiff who makes a second complaint about harassment could ever have been retaliated against for an earlier complaint."

Dual race and gender harassment case goes to trial

The rare case alleging racial and gender harassment is going to trial in the Southern District, now that the Court of Appeals has reversed summary judgment in this employment discrimination case.

The case is Williams v. Consolidated Edison of New York, decided on November 27. The Court of Appeals issued this decision as a summary order, an odd choice considering it reversed summary judgment and the case raises some interesting legal issues. The precedential value of summary orders is limited, but it's always worth noting how the Second Circuit views these cases. The Court summarized the nature of the hostile work environment as follows:

Williams provided evidence of the following treatment or conduct over the course of approximately three years at the company: (1) one supervisor, John Dekanchuk, referred to Williams as a “black bitch” on more than one occasion and Fernandez, another supervisor, referred to her as a “bitch”; (2) Dekanchuk directed gender-based verbal abuse at Williams and Howe; (3) Dekanchuk insinuated that Williams and Oliver Jones were having a sexual relationship; (4) several male co-workers repeatedly used offensive and derogatory terms for women, such as “bitch” and “cunt”; (5) women encountered pornographic materials in the workplace on at least several occasions; (6) Williams and Jackie Howe experienced tampering and sabotage of their equipment; (7) male co-workers were unwelcoming to women and commented that they did not belong in the Brooklyn Flush unit; (8) male workers sought to avoid shifts with women and supervisors would honor their requests; (9) at least one employee made comments to the effect that supervisors should let the men know when women were menstruating; and (10) women were not provided with adequate locker room facilities for months, until October 2001, although the men were. In addition, one of Ms. Williams’s coworkers, Susan Kartell, states that she, too, was sexually harassed, including that she was called a “bitch” and a “cunt” on a regular basis, that supervisors ignored her complaints about this verbal abuse, and that one supervisor threatened to suspend her from her job if she continued to complain.

If credited by the jury, this evidence supports a finding that Williams was subjected to a hostile work environment on account of her gender. The Court of Appeals also found that the jury could find that Williams was subjected to a racially hostile work environment: "One deponent testified that Dekanchuk and Steve Raft, a coworker, used the word 'nigger' and that other employees used racially offensive language such as 'boy' to talk down to black employees." This case raises a few issues that surface from time to time: (1) dual sexual and racial hostile work environment claims for the same plaintiff and (2) the finding that co-workers who use the word "nigger" automatically create a hostile work environment.

The plaintiff may hold Consolidated Edison liable for this harassment. This portion of the decision is most interesting in that, while the company did not completely ignore the complaints of workplace harassment, it did not take the complaints seriously enough. On the racial harassment, "several of Williams’s co-workers verified her allegations that men sought to avoid working with women and supervisors honored their requests and that African-American employees were sent more frequently to high-crime neighborhoods. Yet inexplicably, the report summarizing the investigation did not discuss these co-worker accounts in reaching its conclusion that there was no record of discriminatory work assignments." Without any evidence that Con Ed followed up on this information, the jury can find that the company failed to take appropriate remedial action in response to Williams's complaints. The racial harassment can also be imputed to Con Edison because the human resources officer arguably performed a perfunctory investigation into Williams' complaint.

This issue of the adequacy of the employer's response on the harassment claims is ultimately for the jury: "although “[a] fact-finder may well conclude that [the employer]’s responses were reasonable and adequate,” we cannot “say as a matter of law that the record evidence compels only that result.”

Border searches following Islamic conference in Toronto did not violate Constitution

The terror threat continues to pre-occupy the Second Circuit Court of Appeals. This time it ruled that innocent Muslims who were searched at the U.S.-Canadian border following a three-day Islamic conference could not challenge the legality of those searches under the U.S. Constitution.

The case is Tabaa v. Chertoff, decided on November 26. It started when the Department of Homeland Security learned about an Islamic conference in Toronto scheduled for the final week of 2004. The government learned that individuals who were associated with terrorist organizations would be in attendance and that the conference would serve as a possible meeting place for terrorists. But not all in attendance (approximately 13,000) were terrorists. The five plaintiffs who were detained and searched upon entering the United States had no criminal records and the government had no reasonable suspicion that they had any terrorist ties. Since they attended the conference, however, they were subjected to extensive questioning about the conference and their alliances and they were also frisked and searched. Some claimed physical abuse during the detention. While the database no longer contains their fingerprints or photographs, the government continues to hold onto the plaintiffs' identifying information, i.e., their names, date of birth and address.

The Second Circuit held that the law provides no remedy for these plaintiffs, not even expungement of their personal information from the database. Although the Fourth Amendment prohibits unreasonable searches and seizures, the Supreme Court has granted the Federal government broad authority to conduct routine searches at the border. The question is whether this search is "routine" (presumed legal) or sufficiently invasive to require a showing of "reasonable suspicion" before conducting the search. While there may have been a stigma associated with aspects of the search, overall the search was not materially different from other border searches, and pat-down searches and fingerprinting/photographing are not too invasive in this context. While the searches lasted from 4-6 hours, that is more like the (legal) one-hours delay than the (illegal) overnight delays.

The cumulative effect of the search procedures at the border also does not violate the Constitution. The Court reasoned:

And while we leave open the possibility that in some circumstances the cumulative effect of several routine search methods could render an overall search non-routine, we do not find that to be the case here. While plaintiffs were undoubtedly made uncomfortable and angry by the searches, and they may understandably have felt stigmatized, their personal privacy was not invaded in the same way as it would have been had they been subject to a body cavity or strip search, or involuntary x-ray. Because the decisive factor in the analysis is invasiveness of privacy – not overall inconvenience – we find that CBP’s searches of plaintiffs, considered in their entirety, were routine in the border context, albeit near the outer limits of what is permissible absent reasonable suspicion.

The plaintiffs also claimed that the searches violated their First Amendment right of association. The Second Circuit agreed that the plaintiffs did suffer a "cognizable burden" in that the searches may deter them from attending similar conferences in the future. But since the government had a compelling need for the searches (i.e., deterring a terrorist attack), the plaintiffs' rights give way to the need for border security. As it argued that known terrorists were going to attend the conference, the government also proved there was no other reasonable way to further this compelling interest other than to search everyone entering the United States. For you constitutional scholars out there, the Court of Appeals applied the Supreme Court's ruling seminal ruling on freedom of association, Roberts v. United States Jaycees, 468 U.s. 609 (1984), in this context. For these reasons, the Second Circuit also rejected the plaintiffs' argument that the searches violated their religious freedom.

A billion dollars in punitive damages!

Even huge punitive damages awards in favor of a multinational corporation raise constitutional questions. If the award is too large, it violates constitutional due process. That was the argument in Motorola Credit Corp. v. Uzan, decided by the Court of Appeals on November 21.

The opening paragraph sets the stage for international intrigue, lies and money:

In this appeal, the Uzan family of Turkey challenges the district court’s award of $1 billion in punitive damages against it. The court based the punitive damages award on its findings that appellants “engaged in a coordinated campaign of lies and misrepresentations in order to swindle Motorola of more than $2 billion” and that, “threatened with exposure, [appellants] resorted not only to further lies and corporate manipulations but even to obstruction of justice and, ultimately, misrepresentations to this Court.”

The case grew out of a business relationship between Motorola/Nokia and one of the world's wealthiest families, situated in the country of Turkey, which controls over 100 companies. As explained by the Second Circuit, "the district court concluded that defendants fraudulently obtained loans from Motorola for more than $2 billion and from Nokia for approximately $800 million, purportedly to finance the development of the Uzans’ telecommunications business in the Telsim company."

The case was tried in the Southern District of New York, but the court applied Illinois law. After finding that punitive damages award was appropriate under Illinois law, the Second Circuit analyzed it under the Due Process Clause. While the Clause does not speak to punitive damages, the Supreme Court has repeatedly held that grossly-excessive punitive damages awards can violate due process. The standard, under BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
(1996) contains the following guideposts:

(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award; and (3) the difference between the punitive damages awarded by the [fact-finder] and the civil penalties authorized or imposed in comparable cases.

After trial, the district court awarded $2,132,896,905.66 in compensatory damages. It awarded another $2 billion in punitive damages. The Second Circuit remanded the punitive damages award because it was too high. So the district court cut it in half. Hence this appeal.

To say the least, a billion dollar punitive damages award would be excessive for most defendants. Not here. In this case, the Court of Appeals focused on the reprehensibility of defendants' misconduct. That Motorola did not suffer physical harm did not matter. In upholding the $1 billion award, the Court of Appeals credited the district court's findings: "[I]n the broader sense, it is hard to imagine financial misconduct that was more reprehensible than that of the defendants here, perpetrating at an international level an immensely complicated fraud that inflicted severe economic injury and sought to make a mockery of the judicial proceedings in several different countries."

SUNY Albany's student fee guidelines violate the First Amendment

Conservative students at SUNY Albany brought a First Amendment challenge to the university's rules governing the allocation of student activity fees. The students (who belong to the College Action Leadership League of New York) objected that the student government allowed their classmates to vote in a non-binding referendum how much money to allocate for campus organizations. Since this procedure might affect how much money the student government would budget for certain organizations, it violates the First Amendment requirement that the government cannot discriminate on the basis of political viewpoint.

The case is Amidon v. Student Association of the State University of New York, decided on November 20. On its face, the case may not seem to have much of an impact, but the ruling has important consequences in the ever-complicated world of First Amendment law and the requirement that government actors regulate speech according to viewpoint-neutral principles.
At its most simplistic level, this means that, if the student government is allocating money for an anti-war group, it cannot deny money for a pro-war group based on the latter's viewpoint. That's sort of what happened here, as the student-plaintiffs belong to a conservative policy organization and they seem to distinguish themselves from New York Public Interest Research Group (NYPIRG), which has a real presence on college campuses.

The principle of viewpoint neutrality is harder to apply than it looks. SUNY Albany was allowing students to vote on how much money goes to a campus organization. But this vote was non-binding; the student government was free to disregard it. The student government could only use the referenda for advice regarding the appropriate level of funding, not whether to fund the organization at all. So why does the procedure violate the rules of viewpoint neutrality? Because, according to the Second Circuit, "protected speech will be chilled when school officials 'cast disapproval on particular viewpoints of its students . . . in one of the vital centers for the Nation's intellectual life, its college and university campuses.'" Moreover, according to the Second Circuit,

A university’s viewpoint-discriminatory decision respecting how much funding to allocate to a [recognized student organization] raises the same concerns as a viewpoint-discriminatory decision respecting whether to fund a [recognized student organization] at all. The level of funding a group receives may serve as an expression of approval or disapproval of the group’s message. And the amount allocated to a group, whether a lot or a little, can skew debate on issues on which the group advocates a position. In this context, a comparatively low level of funding may not be much different than a complete denial of funding.

Since a majority of the students in theory could vote to give an unpopular student organization less money than other political organizations, the rules at SUNY Albany raise the substantial risk that the unpopular organization will get shafted because of its viewpoint. This is especially so since the student government could take the non-binding student vote into account in allocating less money to an organization. That violates the First Amendment, and SUNY Albany's procedures are stricken. Those of you reading this who are not familiar with the First Amendment may wonder how a theoretical risk can give rise to a real constitutional issue. But that's how the First Amendment works.

This case raises a number of issues which have not surfaced in the Second Circuit in years. Since the Supreme Court has issued several important First Amendment/viewpoint discrimination cases in the last decade or so, this case gave the Court of Appeals an opportunity to re-consider this complicated doctrine. For example, and this may be an issue that only First Amendment lawyers can love, the Second Circuit held for the first time that viewpoint neutrality prohibits the government from maintaining discretionary speech rules (which create the possibility that decisionmakers will deny or inhibit speech for personal or inappropriate reasons). On this point, the Second Circuit follows the lead of the Seventh Circuit, which in turn applied a Supreme Court ruling, Board of Regents v. Southworth, 529 U.S. 217 (2000).

Jury wheel at the White Plains courthouse is constitutional

A capital murder case in the White Plains courthouse of the Southern District of New York led the defendants to challenge the fairness of the jury selection procedure. Racial minorities are under-represented in these jury pool. But, the trial court held, that does not mean the defendants will be denied a fair trial. Motion to stay the trial denied.

The case is United States v. Barnes, 04 Cr. 186 (SCR), reported at 2007 U.S. Dist. LEXIS 77426 (S.D.N.Y. Oct. 15, 2007). Judge Robinson summarized the findings of a report analyzing the jury pool in the northern counties of the Southern District of New York. While most media coverage of SDNY proceedings focus on the heralded Foley Square courthouse in downtown Manhattan, the White Plains courthouse in suburban Westchester County is no slouch, both architecturally and in terms of the quality of the Federal bench. But the report, conducted by law professors, found the following statistical anomalies:

1. Whites comprise 71.56 percent of the population in the northern counties but make up 78.10 percent of the qualified jury wheel.

2. Blacks comprise 10.66 percent of the population but make up 7.42 percent of the qualified jury wheel.

3. Hispanics comprise 12.19 percent of the population but make up 8.96 percent of the qualfied jury pool.

In other words, according to the report, "White-Americans are therefore overrepresented by approximately 5 percent in the Qualified Jury Pool relative to their voting age population, while African-Americans ar underrepresented by 2.8 percent and Hispanic-Americans are under-represented by 2.3 percent."

Citing the Sixth Amendment's guarantee of a jury selected from a fair cross-section of the community, these statistics prompted the defendants to move to stay the trial on the grounds that the SDNY is not properly selecting juries for the White Plains courthouse. The trial court disagreed, applying a statistical analysis called "absolute disparity" in finding that the defendant will not receive an unfair trial, reasoning as follows:

African-Americans are underrepresented by approximately 2.8 percent and Hispanic Americans by approximately 2.3 percent. This would require the addtion of between one and two African-Americans and one and two Hispanic-Americans to a 60 person venire in ordder to reach proportionality. Similar figures have not been repeatedly held to not support a fair cross-section claim.

Non-practicing pro se attorney gets another chance to draft her ADA complaint

We all know the basic rules about pro se pleadings: courts will give pro se litigants the benefit of the doubt and broadly read their papers in the understanding that they are not lawyers and therefore cannot always articulate their claims properly. But what about pro se litigants who are non-practicing attorneys? Do they get special treatment from the courts also?

The answer seems to be yes. The case is Smith v. New York Presbyterian Hospital, decided on November 15. This is a summary order, i.e., an unpublished opinion that generally can't be cited as precedential authority. But its worth noting that the Court of Appeals reversed the dismissal of this Americans with Disabilities Act case. The district court ruled that Smith did not properly allege a connection between her disability and her mistreatment at work. The Second Circuit sent the case back to give Smith another shot at drafting her Complaint properly.

Had Smith been like any other pro se litigant, this holding would be unremarkable. But she isn't. As the Second Circuit reasoned, "While licensed attorneys proceeding pro se need not be afforded the same pleading consideration as in [other cases holding pro se attorneys to the usual high standards], where, as in this case, the plaintiff has not practiced law for years, largely due to psychiatric impairments that are the basis for her disability claim, there is no reason to distinguish her from pro se plaintiffs generally."

No vicarious liability against Vermont church for priest's sexual abuse

A "John Doe" sued a church in Vermont alleging that he was sexually abused by a priest. He sued the church and the priest, who defaulted and presumably lost the case for failure to defend himself. Doe then went after the church, maybe because the priest was judgment-proof and had no money to pay out damages. The problem is employers are not always legally responsible for the misconduct of their employees. What to do?

The case is Doe v. Newbury Bible Church, decided on November 14. This was the second time this case landed in the Court of Appeals. The first time around, in 2006, the Second Circuit ruled against Doe because there was no evidence that the church knew or had reason to know that the priest had a propensity for sexual misconduct. That decision is reported at 445 F.3d 594 (2d Cir. 2006). But the Court of Appeals asked the Vermont Supreme Court to decide whether the law in that State would allow Doe to sue the Church by virtue of the priest's employment there. The Vermont Supreme Court answered "no." This dooms the case in the Second Circuit.

The issue for the Vermont Supreme Court was whether, under Vermont law, "a church [is] subject to vicarious liability for tortious acts of its pastor under the Restatement (Second) of Agency section 219(2)(d) if the pastor was allegedly 'aided in accomplishing the tort by the existence of the agency relation' with the church." In other words, was the priest able to abuse Doe as a result of his relationship with the church? In a prior case in Vermont, the State court there ruled that a county sheriff's department could be vicariously liable for sexual misconduct by a police officer. But, the Vermont Supreme Court ruled, that is quite different from cases involving sexual abuse by a priest at a church. while police cases involve "the extraordinary power that a law enforcement officer has over a citizen," the Vermont courts apparently deem the sexual abuse scenario a different circumstance entirely. Adopting the views of the Vermont courts, the Second Circuit dismissed Doe's case against the church.

Cancelling teen dances at nightclub may violate due process

A proprieter in upstate New York opened a dance club called Fun Quest which immediately became a big hit with local teenagers, who overcrowded the place. Such a hit, in fact, that the Town Board amended the special use permit to prohibit teenage dances. As local officials debated what to do about this problem, the Town Supervisor allegedly made racial comments about Fun Quest's black patrons. The constitutional dispute wound up in the Court of Appeals, which held that Fun Quest has a case.

The case is Cine SK8 v. Town of Henrietta, decided on November 8. After the district court granted dismissed the case on summary judgment, the Second Circuit reinstated the case, outlining how parties in zoning disputes can prevail in a constitutional challenge. Here's what the Court of Appeals (Feinberg, Calabresi and Wesley) did:

1. On the substantive due process claim, Fun Quest arguably had a property interest in the permit which Town officials subsequently amended to prohibit teen dances. It's not easy to show a property interest in zoning cases (which is why many of these cases are sent to State court), but here, Fun Quest's property right was "vested" since it did receive the permit and also invested $2.3 million in renovations in reliance on that permit.

2. The due process claim is also viable because the government had arguably revoked the permit for arbitrary reasons. While this is also a difficult standard to meet, Fun Quest gets a trial on this issue because of the alleged racial animus which motivated the Town Supervisor to oppose the teen dances. What makes this case unique is the Second Circuit's holding that the improper views of one member of a municipal board can make the Town liable even if the rest of the board did not share those views. Unlike other courts, the Second Circuit "has never adopted the rule that a plaintiff must demonstrate that a majority of a public body acted with racial animus or in an otherwise unconstitutional maner in order for that plaintiff to hold the municipality liable for constitutional violations." Instead, to prevail, the municipality must prove that a majority of the board acted for legitimate reasons. In other words, the illicit views of one member creates a presumption that the entire board acted improperly. Not only does the Second Circuit's standard take into account the secretive nature of racism, but it comports with employment discrimination cases holding that the impermissible bias of one decisionmaker can infect the entire process. In this case, at least three members of the board used racial code words, i.e., "city kids," in opposing teen dancing at Fun Quest. That's enought for a trial on this issue.

3. Another reason the plaintiffs get a trial here is the irregular process leading up to the permit amendment. A planning dispute tainted by procedural irregularity is enough to show arbitrary treatment in zoning/due process cases. Here, the Town Board had no lawful authority to amend the permit (it can only suspend or revoke them) and the Board failed to provide Fun Quest any procedural rights at the hearing (such as cross-examination of hostile audience members or the chance to respond to incendiary allegations at the hearing). This allows the substantive due process claim to go forward at trial.

When is an EEOC charge a "charge"?

The U.S. Supreme Court is reviewing a Second Circuit ruling which broadly interprets the employment discrimination laws to allow plaintiffs to seek relief without technically complying with the requirements governing the filing of an administrative complaint. The case arises at a time when scholars are criticizing the Supreme Court for interpreting the civil rights laws in an overly technical manner.

The case is Federal Express v. Holowecki, 440 F.3d 558 (2d Cir. 2006). Last year, the Second Circuit reinstated an age discrimination lawsuit even though the plaintiff did not formally file the administrative complaint with the Equal Employment Opportunity Commission, which reviews and tries to settle discrimination cases before the plaintiff brings the lawsuit. Without first filing a complaint with the EEOC, the plaintiff cannot bring the lawsuit.

In Holowecki, the plaintiff instead filled out a lengthy questionaire with the EEOC outlining the nature of the case. The Second Circuit equated the questionaire with the formal charge that plaintiffs normally file with the EEOC. The issue may seem overly technical, but if the plaintiff neglects to file a formal charge within 300 days of the discrimination, he cannot bring the lawsuit in court. If the questionaire -- which elicits all the information the EEOC needs to process the case at the administrative level -- qualifies as a "charge," then doing so within 300 days preserves the plaintiff's right to bring the lawsuit later on.

The best argument in favor of dismissing Holowecki's case was that since he did not file a formal charge of discrimination, Federal Express did not know that he had gone to the EEOC. One of the reasons for the EEOC process is to allow the employer to investigate the allegations and possibly settle the case before it becomes a full-blown lawsuit. But the Second Circuit said that the real question is whether Holowecki signaled his intent to proceed with a charge of discrimination in completing the questionaire.

Oral argument at the Supreme Court on this case was held yesterday. According to a web site that tracks the Supreme Court, "Although the dispute in this case was nominally between defendant Fed Ex and plaintiff Holowecki, it was evident at oral argument that the Court held the EEOC at fault for creating the dispute both by issuing unclear guidance regarding what constitutes a charge of age discrimination and by implementing inconsistent enforcement practices under its regulations." Indeed, press reports suggest that Holowecki will prevail at the Supreme Court.

"Monell, Monell, Monell"

I was in court once and an attorney was trying to convince the judge that he had a great case. The judge kept interrupting the lawyer, telling him, "Monell, Monell, Monell." Non-lawyers would not know what the judge meant, but any lawyer in the room would understand what the court was trying to convey: the lawyer was suing the wrong entity.


Monell is shorthand for a legal principle under the federal civil rights laws, particularly what we call Section 1983, which is the law that allows us to bring suit for a civil rights violation. Monell v. Department of Social Services, 436 U.S. 658 (1978), was the Supreme Court ruling that outlined when you can sue a municipality under that law. Generally, you can't sue a municipality, such as town, village, county or school district, for something that a government employee did. In other words, there is no respondeat superior in Section 1983 litigation. There are ways around this, but it's not easy. That was the lesson in Reynolds v. DeBuono, decided by the Court of Appeals on October 31, 2007.

In Reynolds, the plaintiff alleged that the State and City of New York were not properly enforcing the new welfare rules enacted in 1996. The district court agreed, finding that welfare recipients were being denied benefits improperly. The State and City were found liable for this, but only the State, and not the City, appealed. The question was whether the State was liable for the City's derelictions. In a lengthy opinion that provides a good primer on the scope of Monell liability, the Court of Appeals said no, primarily for two reasons.

First, and this is a highly technical issue, the Court joined other Circuits in holding that Monell's prohibition against respondeat superior liability applies not only when the plaintiffs seek money damages but also injunctive relief. The Court noted that this view is not unanimous around the Circuits, so the Supreme Court may someday resolve this issue. Since the Second Circuit resolved that issue in this case, that ends the debate in these parts.

Second, while Monell recognizes municipal liability where decisionmakers fail to supervise their subordinates, that's always been a difficult way to get around Monell. The plaintiff has to show that the high-ranking supervisors knew to a moral certainty that their failure to supervise would result in a rights violation. But here, according to the Court of Appeals, it was not enough for the plaintiffs to argue that the State had a "non-delegable duty" to ensure that the City was in compliance with the welfare laws. That's no different from asserting respondeat superior liability, the Court held, because it would make the State automatically responsible for the City's failures. Since plaintiffs could not otherwise show that the City's welfare policies were patently inadequate, requiring the State to intervene to ensure that the welfare policies were fairly administered, their inadequate supervision argument -- theoretically another way to get around Monell -- failed.

The moral of the story is that, once again, efforts to get around Monell's general prohibition against suing superior officers or municipalities are not easy, even when the subordinate officers have utterly failed in respecting civil rights. Relief in these cases is against the subordinate officers in their personal capacities, not the municipalities.