Supreme Court clarifies the meaning of an employment discrimination charge

In order to bring an lawsuit for employment discrimination, you have to first file an administrative charge of discrimination with the Equal Employment Opportunity Commission, which has authority to investigate and resolve the charge. The question is, What is an EEOC charge? Since the Age Discrimination in Employment Act does not define "charge," the Supreme Court was asked to determine if the EEOC's guidelines defining a "charge" are reasonable and whether an intake form could be treated as a charge. The employees win in the Supreme Court.

The case is Federal Express v. Holowecki, decided on February 27. This case affirms a ruling from the Second Circuit Court of Appeals. The EEOC's regulations state that, among other things, the discrimination charge must include the complainant's name and contact information, the name of the employer, and a narrative describing the discrimination. A "catch-all" provision in the regulations says that the charge need only name the employer and contain the narrative. In this case, Federal Express challenged the EEOC's regulations in an attempt to dismiss the case which did not have a proper EEOC charge. The Supreme Court, however, deferred to the EEOC's regulations and policy statements on this issue, concluding:

In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if afiling is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.

However, the Supreme Court rejects the argument that a filing with the EEOC is only a charge when the complainant intends to have the EEOC investigate and resolve the claim. The focus should not be on the discrimination victim's intent but how a reasonable person would interpret the charge. "The filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery andremedial processes."

It is true, the Supreme Court says, that this generous interpretation of the word "charge" means that many informal complaints with the EEOC must be treated as charges and therefore investigated by the agency. But that's not a bad way to proceed, the Court suggests, since many of these charges are filed by non-lawyers who don't know all the rules. "The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes. It thus is consistent with the purposes of the Act that a charge can be a form, easy to complete, or an informal document, easy to draft."

In this case, the intake form filed with the EEOC qualifies as a "filing" under the Supreme Court's test, as the complaining employees described the discrimination and provided contact information. While the EEOC is not required to treat every intake form as a charge, the employees did include a statement to the EEOC requesting that the agency stop the age discrimination at Federal Express.

One other thing: the employer argued that the paperwork filed with the EEOC cannot be a charge unless the EEOC notified the employer of the claim. That usually happens in discrimination cases, but it did not happen here. The Supreme Court does not want the aggrieved employee to suffer the consequences of the EEOC's failure to do its job.

Immunity granted to those bearing false witness at arbitration

If your employment dispute goes to an arbitration hearing and your boss lies and slanders you under oath, can you sue him under 42 U.S.C. sec. 1983? The Court of Appeals today said No.

The case is Rolon v. Henneman, decided on February 25. This case arose from the long-standing dispute between police officers and their supervisors in Town of Wallkill, Orange County. Rolon was the police officer, Henneman the police chief. When Henneman served Rolon with disciplinary charges, the case was heard by an arbitrator. Henneman and another police officer, Moskowitz, testified against Rolon. So far, nothing out of the ordinary about this case.

Then things got extraordinary. When Moskowitz testified at the hearing, he was asked to produce his personal notebooks. Moskowitz left the hearing, telling everyone that the notebooks were at home. He never returned to the hearing. The arbitrator ended up striking all of Moskowitz's testimony. While Henneman stuck around for his testimony, the arbitrator for the most part ruled in Rolon's favor, finding that Henneman and Moskowitz both testified untruthfully and that Henneman's personal hostility towards Rolon motivated him to bring the disciplinary charges against him.

Rolon's section 1983 case against Henneman and Moskowitz fails, however. The problem for Rolon is that the Second Circuit in 1990 ruled that arbitrators, like judges, enjoy immunity from suit for their actions in resolving these disputes. In addition, in Briscoe v. LaHue, 460 U.S. 325 (1983), the Supreme Court held that witnesses in court proceedings cannot be sued over their testimony. The reasoning in Briscoe applies with equal force to arbitrations, since both proceedings rely on sworn testimony and endeavor to find the truth. Testimony is less reliable if the witness tailors his testimony to avoid a lawsuit. Since the arbitration in this case was comparable to a judicial proceeding, Henneman cannot be sued over his allegedly false testimony.

Moskowitz wins the case for a different reason: the Court of Appeals ruled in 2004 that you can't sue someone for malicious prosecution arising from a civil proceeding, only a criminal proceeding. While Rolon also sued Moskowitz for fabricating evidence against him, his claim for humiliation and emotional distress is more properly brought as a state-law defamation claim. The "fabrication of evidence" claim under the Due Process Clause also fails because Rolon does not allege a necessary predicate: the deprivation of a property interest. According to the court, Rolon only alleged in conclusory fashion that he suffered economic losses as a result of Moskowitz's false testimony.

Nassau County's "lag payroll" does not violate the Due Process Clause

To deal with budgetary problems, Nassau County decided to institute a lag payroll for its corrections officers "with the effect of deferring a percentage of each [union] member’s pay until he or she stopped working for the County." The union challenged this procedure under the Due Process Clause on the theory that the County was denying (or delaying) a property interest (salary) without prior notice or hearing. The district court granted plaintiffs summary judgment. The Court of Appeals reversed, and the County wins.

The case is Adams v. Suozzi, decided on February 22. The Second Circuit (Straub, Hall and Haight) assumed that the deferred salaries were a property interest and jumped straight to whether the County satisfied due process. The formula for resolving due process claims is two-fold: (1) is the deprivation a property or liberty interest and (2) did the government provide sufficient pre-deprivation process in the context of denying that liberty or property interest. The interesting thing about due process claims is that the government can provide sufficient pre-deprivation notice and still institute an unfair decision. The idea is that by allowing sufficient due process before taking away the liberty or property interest, the "victim" can persuade the government to change its mind before the decision takes effect.

The County wins the case becasue it did provide sufficient process, according to the Court of Appeals. That's because the County gave the union notice of the lag payroll procedure, telling the union about it more than week before the program went into place, and three weeks before the lag would have been reflected in the paychecks. "That gave [the union] sufficient time to file a grievance under the provisions of the [Collective Bargaining Agreement] challenging the lag procedure as a violation of the CBA’s terms setting wage rates and pay schedules."

As the Court of Appeals reminds us, "We have held on several occasions that there is no due process violation where, as here, pre-deprivation notice is provided and the deprivation at issue can be fully remedied through the grievance procedures provided for in a collective bargaining agreement. . . . The Due Process Clause is implicated only when plaintiffs can establish that the grievance procedures in a collective bargaining agreement are an inadequate remedy." Since a grievance under the union contract was adequate here, there is no due process violation.

Age discrimination law does not apply to Social Security Administration

The Second Circuit has never before decided whether the Age Discrimination in Employment Act applies to certain programs and activities of the Social Security Administration. Today was its big chance. It ruled in the negative.

The case is Maloney v. United States, decided on February 21 (Kearse, Leval and Cabranes). Maloney is a lawyer who wanted certain Social Security benefits upon retirement. The SSA and Maloney spent the next several years fighting over whether Maloney was actually retired and, when he returned to work, whether he was still eligible for benefits. In the end, he sued SSA for age discrimination. The issue here: does the ADEA apply to the Social Security Administration? Non-lawyers may ask, "why not?" Doesn't the law apply to everyone, even Federal agencies? Not always. As the Court of Appeals points out:

The Age Discrimination Act mandates that “no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subject to discrimination under, any program or activity receiving [f]ederal financial assistance.” 42 U.S.C. § 6102. The statute, in turn, defines “program or activity” to encompass the operations of certain types of state and local governmental entities as well as educational institutions and private institutions.

As always in law, the devil is in the details. Is Maloney challenging a "program or activity receiving federal financial assistance?" The Court notes that "Plaintiffs point to no provision of the Age Discrimination Act—and we are aware of none—that would suggest that a federal agency, such as the SSA, comes within the statute’s reach." That doesn't end the inquiry, though. The Court notes further that it has never resolved this issue ("our Court has not yet had occasion to determine whether Social Security benefits or programs administered by the SSA are “programs or activities” within the meaning of the Age Discrimination Act").

So the Court looks to cases involving the application of other Federal civil rights statutes to these kinds of government programs. Title VI of the Civil Rights Act of 1964 has similar language about its application to "programs or activities." In Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983), the Court of Appeals ruled that Title VI -- which prohibits racial discrimination -- does not apply to the Social Security Administration. Summarizing the holding in Soberal-Perez, the Circuit stated:

After examining the language of Title VI, its legislative history, the relevant agency regulations, and the case law interpreting the statute, we found that the statute’s term “program or activity receiving [f]ederal financial assistance,” did not cover federal agencies administering their own budgets, such as the SSA. We concluded therefore that Title VI does not apply to programs directly administered by the federal government, explaining that “[Title VI] was meant to cover only those situations where federal funding is given to a non-federal entity which, in turn, provides financial assistance to the ultimate beneficiary."

As Title VI and the ADEA are similar statutes, the case law governing Title VI on this issue applies here. No remedy for Maloney, at least under the ADEA. Of course, the Court of Appeals reminds us that SSA still shouldn't discriminate on the basis of age. While this is no consolation to Maloney, the Circuit states that "The SSA’s exclusion from the remedial provisions of the Age Discrimination Act does not constitute a license to discriminate on the basis of age. When such discrimination occurs, 'the Constitution and the Social Security Act itself,' as well as other applicable statutes, may provide an appropriate remedy; we merely hold that the Age Discrimination Act does not."

Botched EEOC charge can still support age discrimination claim

What happens when your EEOC complaint is filed with the EEOC, without all the correct pages? This happened to Enid Ximines, who sued the New York City Department of Education for age discrimination, only to have the trial court reject her amended complaint because one of its claims was not properly before the EEOC. The Second Circuit reinstated the Complaint.

The case is Ximines v. George Wingate High School, decided on February 20. The plaintiff alleged that from 2002 through 2004 she was denied certain promotions because of her age. The problems was that you cannot bring an Age Discrimination in Employment Act case in Federal court without first filing a charge of discrimination with the Equal Employment Opportunity Commission. In plaintiff's EEOC charge, the 2004 incident was written on the last page, which for some reason was not filed with the EEOC. The defendants did not receive that allegation in the EEOC charge, either.

The Second Circuit noted that, while the 2004 incident was not part of the EEOC charge, it could still comprise part of the Federal lawsuit if that incident was reasonably related to the charges that were properly filed with the EEOC. This is based on the theory that a proper investigation by EEOC will uncover that allegation even though it's not specifically alleged in the EEOC complaint. There's a long line of cases for this proposition, most recently Williams v. New York City Housing Auth., 458 F.3d 67, 70 (2d Cir. 2006).

As these issues are always decided on a case-by-case basis, the Court of Appeals noted the unique facts here and found for plaintiff, reasoning:

In this case, plaintiff’s Charge of Discrimination, even without the final page, made clear that she complained of age discrimination in several efforts to secure promotion to assistant principal. It referred also to the June 2004 interview for the permanent opening. Moreover, the charge found in the EEOC file readily reveals that a page or more concerning that particular attempt to gain promotion was missing from the document. In consequence, even absent the last page, the charge gave the EEOC adequate notice to investigate the plaintiff’s grievance concerning the September 2004 promotion. We therefore hold that the EEOC charge was sufficient to permit plaintiff to pursue an ADEA claim with respect to the September
2004 failure to promote.

Circuit reinstates disability claim for injured police officer

The Court of Appeals has given a disabled police officer another chance to prove that he was discriminated against on the basis of his disability in violation of the Americans With Disability Act.

The case is Price v. City of New York, decided on February 13. The opinion is not clear as to whether he was fired or denied an accommodation due to his injury. The employer's defense was that Price was not covered under the ADA because patrol duties are an essential function of a full-time police officer's job. Generally, under the ADA, if a certain responsibility is essential to the position, then it is not discriminatory for the employer to change the employee's job assignment because of his inability to perform that responsibility.

The district court dismissed the claim. The Second Circuit reversed because the record is not clear whether patrol duties are, in fact, an essential job function for New York City police officers.

The Court of Appeals noted that the relevant factors in determining whether job functions are essential include "the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring the plaintiff to perform the function, mention of the function in any collective bargaining agreement, the work experience of past employees in the job, and the work experience of current employees in similar jobs."

In addition, the Federal regulations state that "The consequences of failing to require the employee to perform the function may be another indicator of whether a particular function is essential. For example, although a firefighter may not regularly have to carry an unconscious adult out of a burning building, the consequence of failing to require the firefighter to be able to perform this function would be serious. . . . A court must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position.’”

No single factor outlined above determines whether a job function is "essential" under the ADA. Here, the trial court did not perform the right analysis, according to the Second Circuit. "The district court, in focusing on the policies of the police department in general, failed to allow sufficient discovery as to whether patrol duty constituted an essential function of the PPO position in particular under all of the factors set forth above, as well as any other factors that may be relevant to such a determination."

This case was a summary order, which means it generally is not precedential and lawyers may only rely on it under certain circumstances. The decision does shed light on the Second Circuit's thinking in this area. Additional guidance is available from the precedential ruling that the Court relied on in this case is Stone v. Mount Vernon, 118 F.3d 92 (2d Cir. 1999).

Restaurants must accommodate blind patrons under the Americans With Disabilities Act

The Court of Appeals has reinstated an Americans With Disabilities Act lawsuit alleging that fast-food restaurants were not properly accommodating a patron who needed help reading the menus. The case is Camarillo v. Carrolls Corporation, decided on February 8. Here are the facts:

Alice Camarillo, who is legally blind but is able to read enlarged writing at a very close distance, frequently patronizes the fast food restaurants near her home that are owned and operated by defendants. Defendants’ restaurants do not have large print menus that Camarillo can read, and when she has asked for employees to read her the menu items, she has been made fun of, stared at, and forced to wait until other customers behind her in line were served, and the employees have often read her only part of the menus.

The district court dismissed the case under Rule 12 because Camarillo was still able to eat and otherwise use the restaurants and therefore did not suffer discrimination. The Court of Appeals (Wesley, Straub and Livingston) disagreed. The question is whether she suffered discrimination under the ADA. While Camarillo argued that she was denied a "full and equal" opportunity to use the restuarants which denied large print menus and other means to ensure effective communication of the food choices, the restaurants argued that the ADA only requires that menus be made available to patrons and that plaintiff is really only complaining about poor service.

At this stage of the case, the Second Circuit agrees with Camarillo:

The complaint alleges that on multiple visits to each of defendants’ restaurants, Camarillo informed employees that because of her disability she could not read the menu herself, and that the employees “often” responded with annoyance or impatience, at best reading her only a “part” of the menu. . . . While restaurants are not necessarily required to have on hand large print menus that Camarillo would be able to read, they are required to ensure that their menu options are effectively communicated to individuals who, like Camarillo, are legally blind. . . . Put simply, Camarillo cannot experience “full and equal enjoyment” of defendants’ services if she is unable to access the list of the services available to her.

Moreover, the defendants failed to adopt policies to effectively train their employees how to deal with disabled patrons, and they thus failed to take steps under the ADA to ensure that patrons are not treated differently because of their disabilities.

Camarillo also has standing to bring this case. Normally, litigants can't sue over discriminatory practices if there is no reason to believe those practices will harm them in the future. Camarillo gets around this hurdle because she alleges that she has has eaten at these restaurants frequently in the past and plans to do so again. As the Court of Appeals cites a Ninth Circuit case for this reasoning (Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002), in its own small way, this decision advances the "standing" rights of disabled people in the Second Circuit.

Public employee's lawsuit cannot support First Amendment retaliation claim

Public employees cannot be retaliated against for speaking out on matters of public concern. That's been the law for nearly 40 years. In 2006, though, the Supreme Court altered the equation by ruling in Garcetti v. Ceballos that it's not "public concern" speech when the government worker speaks pursuant to his official duties. This ruling doomed many First Amendment/whistleblower retaliation lawsuits because the public employees in the best position to speak out on the job are often the ones who did so pursuant to their official responsibilities.

The Court of Appeals has not squarely applied Garcetti's holding. But today it nibbles around the edges in Ruotolo v. City of New York, ruling that a public employee's lawsuit over job conditions cannot predicate a retaliation lawsuit. In the past, it was routine for public employees to bring a First Amendment lawsuit claiming that a prior lawsuit caused management to retaliate against them. The prior lawsuit was considered First Amendment activity which could not motivate any retaliation. In Ruotolo, the Court asks whether the prior lawsuit addressed matters of public or private concern. In Cotarelo v. Village of Sleepy Hollow, 460 F.3d 247 (2d Cir. 2006) (a case that I briefed on appeal), the Court of Appeals held that Cotarelo's prior lawsuit which alleged widespread discrimination in his police agency addressed a matter of public concern because it did not solely address Cotarelo's private grievances.

Ruotolo is not Cotarelo, says the Court of Appeals (Jacobs, Sotomayor and Leval). Ruotolo's lawsuit which prompted the retaliation involved his claim that management altered the terms and conditions of his employment after he drafted a report describing widespread health and safety problems at the police department. The report may have addressed important public matters, but the district court ruled that it was not "public concern" speech because, pursuant to Garcetti, it was drafted pursuant to his official duties, not as a private citizen. Since it further alleged retaliatory acts that were unique to Ruotolo's employment, that lawsuit was not First Amendment activity in that it did not address matters of "public concern," only his private grievances. The Court of Appeals suggests this was the right result, but Ruotolo did not appeal that part of the decision, knowing that he would lose under Garcetti.

So the importance of Ruotolo is that some lawsuits by public employees are protected under the First Amendment and cannot predicate any retaliation by management. But if that lawsuit involves claims unique to the plaintiff and does not address widespread discrimination or other matters of "public concern," the retaliation is non-actionable under Garcetti. Summing up, the Second Circuit writes:

A generalized public interest in the fair or proper treatment of public employees is not enough. Because Ruotolo’s lawsuit concerns essentially personal grievances and the relief he seeks is for himself alone, the lawsuit is not speech on a matter of public concern and cannot sustain a First Amendment retaliation claim.

New York must recognize out-of-state same-sex marriages

In 2006, the New York Court of Appeals held that the Equal Protection Clause of the State Constitution does not require the State to sanction same-sex marriages. But that case, Hernandez v. Robles, 7 N.Y.3d 338 (2006), is not the end of the story. On February 1, 2008, the Appellate Division in Rochester, N.Y., ruled that, notwithstanding Hernandez, the State must recognize same-sex marriages that are valid elsewhere.

The case is Martinez v. County of Monroe. The plaintiff works for a county in upstate New York, which would not grant her the benefits normally afforded to people in traditional opposite sex marriages. The plaintiff was married in Ontario, Canada, which officiates same-sex marriages. Martinez claimed that the New York Human Rights Law, which makes it illegal to discriminate against employees on the basis of sexual orientation. The question is, if New York does not allow for these unions, must her employer recognize her same-sex marriage?

The answer is yes. The Appellate Division, Fourth Department, noted that New York must recognize out-of-state marriages unless (1) State law prohibits that marriage or (2) the marriage involves incest or polygamy. Of course, Martinez's marriage was not incest or polygamy, so the question is whether the first exception applies. It does not. The State Legislature has not enacted any laws prohibiting recognition of same-sex marriages. While the County in this case argued that Hernandez v. Robles (rejecting same-sex marriage in New York) sets forth public policy against recognizing a Canadian same-sex marriage, the Appellate Division thinks otherwise:

Hernandez does not articulate the public policy for which it is cited by defendants, but instead holds merely that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York. The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff’s marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC § 1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state. Thus, we conclude that plaintiff’s marriage to Golden, valid in the Province of Ontario, Canada, is entitled to recognition in New York in the absence of express legislation to the contrary.

Eminent domain challenge to Atlantic Yards Project fails

Eminent domain emerged as a substantial constitutional issue a few years ago when the Supreme Court, in Kelo v. City of New London, said that the government could take residential property to help private developers who would revitalize the community. On February 1, the Second Circuit followed suit, rejecting an eminent domain challenge where the government wants to take land in a blighted area to help build a new stadium for the New Jersey Nets, public open space and other development projects at the Atlantic Yards Project in Brooklyn.

The case is Goldstein v. Pataki. Here's how the Court of Appeals summarizes the plaintiffs' claims:

The heart of the complaint . . . and the centerpiece of the instant appeal, is its far-reaching allegation that the Project, from its very inception, has not been driven by legitimate concern for the public benefit on the part of the relevant government officials. Appellants contend that a “substantial” motivation of the various state and local government officials who approved or acquiesced in the approval of the Project has been to benefit Bruce Ratner, the man whose company first proposed it and who serves as the Project’s primary developer. Ratner is also the principal owner of the New Jersey Nets. In short, the plaintiffs argue that all of the “public uses” the defendants have advanced for the Project are pretexts for a private taking that violates the Fifth Amendment.

The Supreme Court has interpreted the eminent domain provision of the Fifth Amendment to mean that "one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.” The issue here is whether the Atlantic Yards Project is for a public or private purpose. After noting that the Federal courts have a limited role in second guessing the Legislature's determination that a taking is for a "public use," the Second Circuit rejects this eminent domain challenge because "viewed objectively, the Project bears at least a rational relationship to several well-established categories of public uses, among them the redress of blight, the creation of affordable housing, the creation of a public open space, and various mass-transit improvements."

In other words, the Circuit tells us, "the redevelopment of a blighted area, even standing alone, represents a classic example of a taking for a public use. Nor does it matter that New York has enlisted the services of a private developer to execute such improvements and implement its development plan. Once we discern a valid public use to which the project is rationally related, it 'makes no difference that the property will be transferred to private developers, for the power of eminent domain is merely the means to the end.'”

As for the plaintiffs' claim that the government's justification for eminent domain is pretextual, or mendacious, the Second Circuit reads Kelo to reject any pretextual challenge to a public taking. Of course, the court never says never: "a fact pattern may one day arise in which the circumstances of the approval process so greatly undermine the basic legitimacy of the outcome reached that a closer objective scrutiny of the justification being offered is required. In this area, 'hypothetical cases . . . can be confronted if and when they arise.'"