Does the First Amendment allow you to call someone a "fascist"?

An administrator at the Town of Greenburgh Recreational Facility (Westchester County) kicked a patron out this public building after being called a "fascist" and "junior Mussolini." Does that give the patron a First Amendment claim? Yes, and no. The speech is protected under the First Amendment, but the patron loses for other reasons.


The case is Williams v. Town of Greenburgh, decided on July 22. I wrote about the due process holding in Williams here. (I also represented the plaintiff in the district court and on appeal). Williams also plead a First Amendment claim because he was thrown out of the facility after calling the administrator these names and generally commenting on the administrator's management of the facility.

The Second Circuit notes that the appropriate test under the First Amendment depends on the circumstances. In the employment context, the speech must touch upon a matter of "public concern" and the plaintiff must prove an "adverse employment action," i.e., termination or demotion. In the non-employment context, the plaintiff must show “(1) [the plaintiff] has an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his First Amendment right.”

The Court clarifies the law in advising us that "Because Williams was not a public employee when he criticized Bland, his speech need not have been on a matter of public concern for it to fall within the protection of the First Amendment for the purposes of this action." The question, then, is whether Williams' comments were protected First Amendment speech or whether they constitute unprotected "fighting words." It's free speech, the Second Circuit rules:

While comparing the manager of a recreational center to a fascist dictator easily qualifies as “personal abuse” in a colloquial sense, as a matter of law it does not rise to the level of “so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” . . . In Buckley v. Littell, we held that the use of the word “fascist” to describe a political commentator fell “within the realm of protected opinion and idea” and therefore was not actionable in a libel suit. 539 F.2d 882, 894 (2d Cir. 1976). Indeed, comparing a disliked authority figure to a fascist leader is an exceedingly common—arguably hackneyed—rhetorical device. . . . Accordingly, we hold that Williams’s comments were protected by the First Amendment.

The problem for Williams is that expulsion from the facility did not chill his speech, as he continued to advocate for himself in speaking to a member of the facility's advisory board and asking the Town Supervisor to reverse his expulsion months later. In that letter to the Supervisor, Williams sharply criticized the officials who kicked him out of the building. The Court concludes, "It is abundantly clear from the record that Williams’s readiness to hold forth on his perceived mistreatment at the hands of Bland and White was unimpaired by their allegedly punitive conduct."

No liberty interest in using a public facility

The right to travel is one of the Constitutional rights which does not appear anywhere in the Constitution. But the Supreme Court recognizes that right as fundamental to our political system. You can travel from state to state or within the state without arbitrary restrictions by the government. Does this liberty interest extend to the use of public buildings? The Second Circuit says no.

The case is Williams v. Town of Greenburgh, decided on July 21. I represented the plaintiff on appeal. Williams was using a recreational facility in Westchester County when he was evicted without good cause. His due process claim alleged that the expulsion took place without an opportunity to be heard. Since you need a liberty interest to predicate a due process claim, he argued that the liberty interest was the right to free movement, a by-product of the right to travel. We relied on a Sixth Circuit case, Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002), which contains an interesting discussion of the right to free movement and the use of public spaces.

Williams loses in the Second Circuit because the right to free movement may cover inter- and intra-state travel, but not the use of public facilities, like the recreational facility in Town of Greenburgh. The Court reasoned that while its precedents on the right to free movement "stand for the proposition that individuals possess a fundamental right to travel within a state[,] it is clear that the right protects movement between places and has no bearing on access to a particular place. . . . Williams's right to intrastate travel might prevent the Town from burdening Williams's ability to drive, walk, or otherwise proceed from his home to the Center, but it has no bearing whatsoever on whether, upon Williams's arrival, the Town must admit him into the facility."

Supreme Court to review NY law shielding corrections officers from suit

If you look hard enough, you'll find all kinds of anomalies in the New York statutes. One of them is Corrections Law section 24, which says that New York courts have no jurisdiction to handle any lawsuits for money damages against corrections officers for actions taken in the scope of their employment. You can't bring these claims in Federal court, either. The way around this prohibition is to sue the State in the Court of Claims.


The problem for plaintiffs' lawyers is section 24 conflicts with 42 U.S.C. section 1983, the general Federal civil rights law which allows you to sue individuals for constitutional violations. The cases that come to mind here are those alleging the excessive use of force by corrections officers. (Section 24 does not prohibit sexual harassment suits against corrections officers because that tort is outside the scope of an officer's employment, under a case I argued ten years ago, Ierardi v. Sisco, 119 F.3d 183 (2d Cir. 1997)).


Does section 24 violate the Constitution's Supremacy Clause, which says that Federal law trumps State law? The Supreme Court is going to decide that issue in the 2008-09 term. The case is Haywood v. Drown, 9 N.Y.3d 481 (2007). The New York Court of Appeals rejected the Supremacy Clause challenge to Section 24 on November 27, 2007. The Supreme Court granted certiorari on June 16, 2008.

The New York Court of Appeals summarized the competing positions as follows:

Plaintiff contends that when Congress enacted 42 U.S.C. § 1983, it imposed a national policy that was intended to allow persons who are injured by others acting under color of law to seek judicial redress. He claims that by prohibiting section 1983 actions for money damages, Correction Law § 24 impermissibly discriminates against the federal cause of action contrary to the purpose of the Supremacy Clause. Defendants submit that there is no constitutional violation because the states are free to limit the subject matter jurisdiction of their courts. They maintain that section 24 treats all state and federal monetary claims identically since none can be brought against a correction officer personally and, therefore, section 24 does not discriminate against a federal cause of action in favor of a state cause of action.

Citing Supreme Court authority, the New York Court of Appeals says that the legal standard for determining whether a State law conflicts with Federal policy under the Supremacy Clause "is when a state court lacks jurisdiction due to a neutral state rule regarding the administration of the courts. . . . A corollary to this principle is that a state rule will be deemed 'neutral' and 'valid' if it does not discriminate against federal claims in favor of analogous state claims. . . . Ultimately, what the Supremacy Clause prohibits is refusal by a state court to entertain a suit for the sole reason that the cause of action arises under state law."


Over a dissenting opinion, the Court of Appeals majority holds that Section 24 does not violate the Supremacy Clause because it prohibits all damages claims against corrections officers in State or Federal court. As the law does not favor State claims over Federal claims, it satisfies the constitutional standard.


Why did the Supreme Court take this case for review? The Court will not tell us until it decides the case. That day will come later this year or sometime in 2009. This is not a hot topic. There is not a lot of on-line commentary on this issue. There are few Supremacy Clause scholars out there, and the Supreme Court's decision to hear this case did not generate much press attention. But the issue is important. We all know that politicians can easily pass laws protection corrections officers from inmate lawsuits, but how far can they go in that effort? True, you can sue the State in the Court of Claims for prison abuses, but unlike cases brought under Section 1983, there are no attorneys' fees waiting for you at the end of the case, and most inmates cannot pay their way through cases like this. Most lawyers do not even know where the local Court of Claims is located, and that forum has special rules which few of us have mastered.

Supreme Court rulings are retroactive

Sometimes, the Supreme Court issues a ruling that kills your case midstream. That's because Supreme Court decisions have retroactive effect. There is no grandfathering. That's the lesson of Appel v. Spiridon, decided on July 2.

The plaintiff sued her employer under the Equal Protection Clause because she was required to submit to a psychological examination in order to maintain her teaching position at Western Connecticut State University. Her legal theory was "class of one." This means that, as a lone plaintiff, she can maintain that a government entity treated her arbitrarily and that she is the only member of the class who was treated this way. The trial court granted plaintiff's motion for a preliminary injunction, reasoning that she had a strong likelihood of success on the merits of the case and that she would suffer irreparable harm without the injunction. For a plaintiff, there can be nothing better than a preliminary injunction, as it means you have temporarily "won" the case and that the defendant has to leave you alone for the time being.

Here's the problem for plaintiff. A few months ago, the Supreme Court decided that the "class of one" theory cannot apply in the context of public employment because these decisions are discretionary with the employer and the courts cannot mediate every workplace dispute. That case was Engquist v. Or. Dep’t of Agric., 128 S. Ct. 2146 (2008). Appel's lawyer and the trial court did not have the benefit of Enquist when her case was pending. That doesn't matter. Enquist requires the Second Circuit to vacate the preliminary injunction. Appel loses.

What is more, recognizing that it had previously interpreted the Equal Protection Clause to govern workplace decisions, the Second Circuit expressly "overrule[s] any precedent of this Circuit to the extent that it conflicts with the holding of Enquist." Those cases are: Skehan v. Vill. of Mamaroneck, 465 F.3d 96 (2d Cir. 2006) and Neilson v. D’Angelis, 409 F.3d 100 (2d Cir 2005).

What is a case worth? The Appellate Division tells us.

That's the question that lawyers and litigants ask all the time. Back pay is easy to calculate, but what about pain and suffering? There are few guidelines in the statutes governing this issue, but the case law does provide some guidance. This week, the Appellate Division in Albany did just that, reducing an $850,000 damages award to $200,000.

The case is New York State Dept. of Correctional Services v. New York State Division of Human Rights, decided on Juy 10. The employee, Alicia S. Humig, was the only female correction officer on her cell block at Wende Correctional Facility. A hearing officer found that she was subjected to a hostile work environment and discrimination based upon her gender and sexual orientation through a co-worker's obscene language and offensive conduct, which her employer did not remedy. In fact, Humig was retaliated against for complaining about the discrimination. The hearing officer awarded Humig $850,000 for pain and suffering.

While upholding the findings of liability, the Third Department significantly reduced the damages award: "We cannot agree, however, that the award of $850,000 for Humig's emotional distress is reasonably related to the wrongdoing, supported by the record and comparable to other awards for similar injuries. It is well settled that 'an award of compensatory damages must be based on pecuniary loss and emotional injuries actually suffered' as a result of discrimination, and '[c]are must be taken to insure that the award is . . . not punitive.'"

Here is the extent of Humig's pain and suffering:

As a result of the discriminatory actions by Wright, she suffered from increased stress, sleeping and eating difficulties, nosebleeds, and that she was physically, mentally and emotionally upset and needed counseling for what her counselor diagnosed as "adjustment disorder with depressive features." Notably, however, Humig attended only four counseling sessions, and she does not claim that she took any leave or was prescribed any medication due to the resulting distress. She testified that Wright's actions caused her to fear for her life and she believed that other correction officers might not come to her aid if a dangerous situation developed.

But this evidence is not enough support the high damages award, at least according to cases decided by the New York courts. Note that while she received counseling, she only went four times. While she suffered serious emotional distress, she did not take leave or any medication for it. The Appellate Division assesses Humig's pain and suffering at $200,000, still a lot of money, but nowhere near $850,000.

Election of remedies clause in union contract does not violate Title VII

The collective bargaining agreement for unionized employees is the first place to look when their rights are violated. When an aggrieved employee in Connecticut looked at the CBA, she saw that it contained a provision that required her to forego arbitration in the event she brought a charge of discrimination with the EEOC. That provision is legal, the Second Circuit held this week.

The case is Richardson v. Commission on Human Rights and Opportunities, decided on July 7. The Second Circuit (Walker and Katzmann) noted that Title VII makes it quite difficult for an employer to require its employees to waive their rights under that law. "Courts have inferred from the purpose and structure of Title VII a requirement -- what we will call the 'Gardner-Denver doctrine' -- that any release or waiver of Title VII meet certain requirements, including that a collective bargaining agreement, as opposed to an individually bargained employment contract] not waive covered workers’ rights to a judicial forum for causes of action created by Congress. . . . Moreover, even with respect to individually bargained agreements, courts require that any such release or waiver be knowing and voluntary."

But the above legal principles do not help the plaintiff here. Judge Walker concludes, "The Gardner-Denver doctrine does not preclude a union and an employer from agreeing that employees must forego their right to arbitrate a grievance if they bring a lawsuit in federal court arising out of the same facts." As "Richardson remained free to file a charge with the EEOC, as she did, and to pursue a Title VII action in federal court, as she has," the CBA's provision disallowing her to bring a simultaneous arbitration does not violate Title VII. This is also sensible policy for the employer and the union as both entities may want to allocate their scarce resources carefully: "the election-of-remedies provision seems to qualify as a “reasonable defensive measure” utilized by Richardson’s employer to litigate discrimination claims brought against it effectively and efficiently."

$600k in compensatory damages for disability discrimination

There are two ways to evaluate a damages award under state law. In a recent case, the Court of Appeals had to figure out what to do about a large jury award for a case of disability discrimination. It appears there is a fork in the road when it comes to reviewing a damages award, and, as Yogi Berra would say, the Court of Appeals did not take it.


The case is Brady v. Wal-Mart Stores, decided on July 2. I write about the liability findings here. After finding that Wal-Mart discriminated against an employee because of his Cerebral Palsy, the jury awarded the plaintiff $2.5 million in compensatory damages, $9,114 in economic damages, $5 million in punitive damages, and $2 in nominal damages. As the Second Circuit noted, "The district court apportioned all of the compensatory damages to the state law claim and all of the punitive damages to the ADA claim. The court struck the economic damages award because Brady did not prevail on his constructive discharge claim. And . . . the punitive damages award was reduced to the statutory cap of $300,000." The plaintiff then accepted a remittitur of the compensatory damages award from $2.5 million to $600,000." In other words, the trial court held the compensatory damages were too much and that plaintiff had to accept $600,000.


Wal-Mart appeals, arguing that the trial court should have reduced the compensatory damages even further and that the court used the wrong legal standard in assessing the damages at $600,000. The Second Circuit identifies two ways to assess whether the trial court did the right thing under state law.


First, under the state law governing damages awards, "a compensatory damages award is excessive 'if it deviates materially from what would be reasonable compensation.'" That law is CPLR § 5501(c). But under the state court decisions dealing with these matters, the standard is:

"whether the relief was reasonably related to the wrongdoing, whether the award was supported by evidence before the Commissioner, and how it compared with other awards for similar injuries.” The Second Circuit thinks the three-part test is more favorable to plaintiffs.


The problem is not only that it's not clear which standard the trial court used in this case, but that the plaintiff did not "protest" this issue on appeal, according to the Second Circuit: "either the district court correctly applied the Transit Authority standard, or it erred in a way that harmed Appellee—by applying the “deviates materially” standard—but Appellee has not protested. Either way, there is no cause for remand. Therefore, the judgment of the district court is affirmed."

Some negative performance reviews are "adverse employment actions"

You can't sue over just any negative decision at work. If you want to sue for employment discrimination, the courts require that you identify an "adverse employment action." That's a legal term of art. Termination from employment or a demotion certainly qualifies as adverse employment actions. The closer calls are the job transfers or other decisions which may or may not have legal consequence, at least in the eyes of the courts ruling on employment discrimination claims.


In a recent case, Judge Rakoff ruled that negative employment ratings were enough to qualify as adverse employment actions. The case is Shapiro v. N.Y. City Dep't of Educ., 2008 U.S. Dist. LEXIS 46327 (S.D.N.Y. June 13, 2008). My office co-represented the plaintiffs in this case.


Normally, negative performance reviews are not enough to bring a lawsuit. In other words, they are not adverse employment actions. But you can sue over them by showing that the reviews have consequences down the road. In Shapiro, the plaintiffs were public school teachers who received "U" ratings. The U stands for unsatisfactory. As Judge Rakoff noted in summarizing the law in this area:

a plaintiff suffers an adverse employment action if he or she undergoes a "materially adverse change" in the terms and conditions of employment. To be "materially adverse," however, a change must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Instead, a materially adverse change must be of the order of "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or [the like]."

In this case, the U ratings were sufficiently detrimental to allow the lawsuit to go to trial:

those plaintiffs who received end-of-year U ratings have created a genuine issue of amterial fact as to whether such a rating constitutes an adverse employment action. Plaintiffs have adduced evidence that the consequences of a U rating include: (a) being removed from "per session" (i.e. extracurricular) paid positions; (b) being barred from applying for per session positions for five years; (c) inability to work in summer school; (d) lost income, including inability to move up a salary step; (e) reduced pension benefits; (f) inability to transfer within the school district; and (g) damaged professional reputations and stymied careers.

Circuit upholds disability discrimination verdict

It's tough to appeal from a jury award. Wal-Mart learned that the hard way in the context of a disability discrimination case, where the trial court ordered that Wal-Mart pay out $600,000 in compensatory damages after the jury found that the company improperly transferred a disabled employee from the pharmacy to the parking lot and subjected him to a hostile work environment.

The case is Brady v. Wal-Mart Stores, decided on July 2. The plaintiff has cerebral palsy. He got the job at Wal-Mart working in the pharmacy but his manager immediately disliked him, playing games with his schedule, expressing unreasonable impatience with his job performance and transferring him to work out in the parking lot, cleaning up garbage and pushing shopping carts. Here's what the Court of Appeals (Calabresi, Kearse and Katzmann) did:

1. It affirmed that plaintiff was disabled and, more significantly, that management perceived him as disabled. The perception claim is available under the Americans with Disabilities Act, but it rarely surfaces in the Court of Appeals, which held that Brady's superior "testified that she regarded Brady to be slow and that she “knew there was something wrong” with him [and] Brady’s father testified that the store manager told him that Chin said that Brady “wasn’t fit for the job.”

2. The parking lot transfer was an "adverse employment action" under the ADA even though Brady did not lose any salary. Since the job "resulted in a 'less distinguished title' and 'significantly diminished material responsibilities,'” the transfer is worth suing over, despite the short time period Brady spent in the parking lot. While Brady was then brought back into the building, it was not the pharmacy but the food section, which the jury could have found was worse than the pharmacy.

3. While "'[G]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed,'” that's not always the case. The Second Circuit thus sets out a wrinkle on that rule, holding that "that an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled." Since Brady's disability was obvious to all (Cerebral Palsy), management had a duty to accommodate it. Since Wal-Mart failed to engage Brady in any dialogue on ways to accommodate his disability, the jury properly ruled in Brady's favor on the accommodation claim.