Title VII case is dismissed because co-workers are not similarly-situated

One way to prove discrimination under the employment discrimination laws is to show that you were disciplined for something and someone else at work got away with it. If that someone else is outside the protected class (race, gender, religion, age), you may have a case. But this is a tough way to win.

The case is Billue v. Praxair, Inc., decided on November 20 by summary order. The general rule in this area is set forth in Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000), which holds that you can claim discrimination if similarly-situated co-workers were not comparably disciplined. The plaintiff, a truck driver, pointed to a co-worker who left his truck unattended for five minutes, leaving the rear trailer door locked, within 100 yards of the employer's property. That guy was not disciplined as plaintiff was, even though plaintiff is black and the co-worker is white.

But these co-workers do not have comparable cases. According to the Court of Appeals, the plaintiff abandoned his truck for 20 minutes while he went shopping. He also "urinated in a public parking lot along a highway." So while both workers were derelict in their duties and probably violated company rules, the plaintiff's actions were materially worse than those of his co-workers. He cannot compare himself to the white co-worker, and for that reason his discrimination case was dismissed.

Fourth Amendment's Warrant Clause does not apply overseas

The Court of Appeals affirmed the convictions of al Qaeda terrorists by holding for the first time that portions of the Fourth Amendment do not apply when U.S. agents are gathering evidence overseas.

The case is In Re Terrorist Bombings, issued on November 24. The Court of Appeals actually issued three separate opinions, each focusing on a different issue. In the Fourth Amendment opinion, the Second Circuit considered whether U.S. agents were able to search defendant El-Hage's residence and conduct electronic surveillance of his telephone lines, both land-based and cellular in August 1996 and August 1997. Normally, under the Fourth Amendment, you need a warrant to search someone's home or phone lines. The angle here is that this all happened abroad, and that the U.S. did not search defendant's private affairs with a warrant.

The Court holds that "the Fourth Amendment’s Warrant Clause has no extraterritorial application and that foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment’s requirement of reasonableness." The reasons for this holding are as follows: (1) no U.S. precedent supports the defendant's argument that a warrant is needed; (2)
"nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own"; (3) any warrants issued by American judicial officers would have dubious legal significance in a foreign nation; and (4) it's not even clear that American judicial officers have the power to issue such warrants in any event.

Under the reasonableness standard outlined above, American authorities properly searched the defendant's property and phone lines in Kenya. American officials knew that al-Qaeda was operating in Kenya at that time. Suspected al-Qaeda associates were using telephones in the building where the defendant lived. American authorities had a disciplined approach to monitoring this activity and determining that the search was necessary. The Court concludes, "U.S. agents did not breach the privacy of El-Hage’s home on a whim or on the basis of an unsubstantiated tip; rather, they monitored telephonic communications involving him for nearly a year and conducted surveillance of his activities for five months before concluding that it was necessary to search his home."

Swastika tattoo is fair game for cross-examination

For the second time in a week, the Court of Appeals has held that criminal defendants are allowed to cross-examine their adverse witnesses if they have racist views.

The case is United States v. Figueroa, decided on November 18. The defendant was arrested and charged with possessing an unlicensed gun. A government witness against Figueroa had swastika tattoos. Since Figueroa is a racial minority, his lawyer wanted to cross-examine the witness, Wright, about his racist views which could impeach his credibility. The trial court said no. The Court of Appeals said yes.

The Confrontation Clause of the Sixth Amendment allows the defendant to test the adverse witness' bias to testify falsely against him. Swastika tattoos are sufficiently racist that the cross examiner should be allowed to focus on them. As the Court of Appeals held a few days ago in ruling that a criminal defendant was allowed to similarly cross-examine a racist witness, "racial bias, at least when held in extreme form, can lead people to lie or distort their testimony, and therefore might bear on the accuracy and truth of a witness' testimony, even though the bias is directed generally against a class of persons and not specifically against the accused."

It goes without saying that the swastika is associated with racist views. The Court of Appeals says it anyway, going so far as to quote Mein Kampf, Adolph Hitler's biography, which talks about the symbol's meaning. While the trial court has latitude in limiting cross-examination, in this case the trial court went too far, citing Fed.R.Evidence 608, which governs attacks on a witness's credibility and truthfulness. That was wrong. The real purpose of the proposed cross examination was to expose witness bias, which is permissible.

The defendant loses the appeal, however. The Court of Appeals held the improper limitation on cross-examination was harmless: "even if Wright's credibility had been undermined by cross-examination regarding his swastika tattoos and related bias, the remainder of the government's case was overwhelming."

Untimely EEOC complaint results in Title VII dismissal

You have 300 days to file a charge with discrimination with the Equal Employment Opportunity Commission if you suffered discrimination at work. Not 301 days or 302 days, but 300 days. The Federal courts strictly interpret this rule, for the most part. The Second Circuit did so this week.

The case is Alleyne v. American Airlines, decided on November 17. This case raises a recurring problem. Let's say you are fired on January 1 but the termination does not take effect until March 30. Then the operative date for purposes of filing the EEOC complaint is January 1, not when the adverse decision actually takes effect.

This case covers the same territory, according to the Court of Appeals, because the plaintiff lost his seniority in March 2002 and was terminated from his position in June 2003. His EEOC filing was within 300 days of the termination, not the loss of seniority. But since the plaintiff claimed that his seniority was revoked in March 2002 for discriminatory reasons and for the purposes of making it easier to fire him down the road, the operative date for the EEOC filing is March 2002, especially since he does not claim the June 2003 termination was discriminatory.

In other words, the real discriminatory event was in March 2002. While the consequence of that event was plaintiff's termination in June 2003, it was the March 2002 seniority revocation which counts under this analysis. The plaintiff argued that he could not have anticipated in March 2002 that the seniority decision would have this effect on his employment more than a year later. The Circuit Court disagrees. The loss of seniority is no trivial matter. Moreover, the Second Circuit states, "Alleyne does not, and reasonably cannot, downplay the significance of the loss of approximately nine years of seniority. 'Seniority is an important employee benefit because . . . it provides job protection. Its deprivation is an injury that sets the statute of limitations running even though the injury is contingent rather than actual unless and until job protection is needed.' Thus, in order to have notice of his claim under Title VII, Alleyne need not have forecast every problem attending his loss of seniority. '[T]he proper focus [for calculating the limitations period] is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.'"

Circuit upholds $300,000 in damages for pain and suffering in harassment suit

People are often surprised to hear that when a case goes to trial, the jury is not given any real guidance as to the value of the case for the purposes of determining an award for pain and suffering. The standard jury instructions ask the jury to give the plaintiff an amount of money that would fairly compensate her for the emotional distress, with the warning that the jury should not make its award based on passion.

This means that the jury can give an excessive award. You can't blame the jury. They have no guidance on these matters. The question, then, is how do the courts assess whether a damages award is appropriate? Case law provides the only answer. Courts will look the comparable cases to see what other juries awarded, and also to see what judges are willing to live with.

The case is Marchisotto v. City of New York, decided on November 7. This unpublished summary order is another guide for lawyers and their clients about damages for serious pain and suffering. In this case, the plaintiff, a male police officer, prevailed at trial on his sex discrimination and retaliation claim against a female supervisor, who pursued a sexual relationship with plaintiff and retaliated against him when he rebuffed her advances.

The jury awarded plaintiff $300,000 in damages for pain and suffering. That's a lot of money. But the trial court sustained the award, noting that plaintiff proved that his physical health suffered substantially as a result of the illegal treatment at work and he sought medical help which lasted several years. The plaintiff was also suffering from depression, anxiety and insomnia, taking medication to for these maladies. Moreover, medical testimony showed that he suffered from panic disorder, posttraumatic stress disorder and major depressive disorder and that these problems persisted through trial. The plaintiff was "shattered" and unable to move on with his life. These are serious damages, and the Court of Appeals, in affirming the damages award, agreed that this justifies the $300,000 award for pain and suffering.

While the Court of Appeals does not do so, the trial court opinion cites cases from New York and around the country in showing that this damages award is in line with comparable cases. Here's a taste of those cases:

Osorno v. Source Enterprises, Inc., 2007 WL 683985, at *5 (S.D.N.Y. Mar. 2, 2007) (finding an award of $4 million for emotional distress to be reasonable based on plaintiff's testimony about her depression, anxiety, and embarrassment); Petroyits v. New York City Transit Auth., 2003 WL 22349676 (S.D.N.Y. Oct. 15, 2003) (award of $150,000 in compensatory damages is not excessive where plaintiff sought mental health treatment for stress from denial of promotion); McDonough v. City of Quincy, 452 F.3d 8, 22 (1st Cir. 2006) (upholding compensatory damages award of $300,000 where bulk of award was for emotional damages and plaintiff testified that he had loved his job, suffered humiliation, and his relationship with his family suffered because of his anger); Moorer v. Baptist Memorial Health Care System, 398 F.3d 469, 485-86 (6th Cir. 2005) (finding award of $250,000 for emotional damages reasonable when plaintiff and his physician testified that he suffered from depression, loss of self-esteem, anxiety, and “excessive thoughts”).

New trial granted where defendant was prevented from cross-examining racist complaining witness

Habeas corpus petitions are hard to win these days, ever since Congress revised the procedures in 1996 to require that the petitions be denied unless the state criminal court unreasonably applied settled constitutional law in denying the defendant a fair trial. That strict requirement did not prevent the Court of Appeals from affirming a habeas award where the criminal court did not allow a defendant to cross-examine the complaining witness about his alleged racist beliefs.

The case is Brinson v. Walker, decided on November 13. The black defendant was charged with robbing a white victim on the street. The defendant denied committing any crime and wanted to prove that the complaining witness hated blacks and used racial epithets. The defendant would prove this through testimony from the complaining witness's co-workers and associates.

The trial judge said no, that this evidence was not relevant because the racial statements were made after the robbery. The Court of Appeals said yes, that the trial judge's ruling violated the Confrontation Clause of the Sixth Amendment, which the courts have interpreted to mean that you can challenge the witness's bias. According to the Second Circuit, "It is hard to conceive of a more 'prototypical form of bias' than racial bias." Since the criminal court prevented the defendant from proving that the complaining witness is a racist, that evidentiary ruling violated the Constitution.

The question, then, is whether that evidentiary ruling represented an unreasonable application of settled Supreme Court case law. The Court of Appeals said that it was. The extreme bias that the complaining witness allegedly harbored toward blacks makes it clear that the defendant had the right to bring this all before a jury to test the witness's credibility, and that this evidence could have made a difference at trial in exonerating the defendant. The Second Circuit reasons, "Brinson had a constitutional right under the Confrontation Clause to cross-examine Gavin on such extreme racial bias so that the jury could make its judgment whether Gavin’s testimony was affected by bias, and in the circumstances it was an 'unreasonable application of clearly established Federal law, as determined by the Supreme Court' to bar his exercise of that right on the ground that a racial bias is general rather than personally directed."

First Circuit excuses the failure to e-file through ECF

The legal profession is slowly becoming a paperless profession, as courts are requiring lawyers to e-file their legal documents. We call this ECF filing. The point is that the Courthouse should not be clogged with voluminous filing cabinets which are bursting at the seams. But some courts and judges still want the hard copy of your legal filings. What happens if you forget to e-file, or you do it too late? Can the case be dismissed over this? Don't laugh. It actually happened.

This case is out of the First Circuit. The case is Velazquez-Linares v. United States, decided on November 10. The plaintiff filed her "paper complaint", but she did not electronically file it fast enough. The judge dismissed the complaint because of this! The court also sanctioned the lawyer in the amount of $150.00. Under the court's local rules, "Standing Order No. 1" states that "parties shall promptly provide the Clerk with electronic copies of all documents previously provided in paper form." The lawyer objected to dismissal, explaining that his computer had malfunctioned. The judge said the lawyer waited too long to fix this problem.

The First Circuit reinstated the lawsuit. The Court of Appeals noted that the rules required "prompt" electronic filing, but it was unclear what "prompt" means, and the trial court could have set a firm deadline. In addition, the government-defendant did not suffer any harm by the late e-filing. The First Circuit reasoned: "In the peculiar circumstances of this case, we hold that the district court read the standing order too inflexibly and acted outside the realm of its discretion in dismissing the action and imposing a monetary sanction without first affording the plaintiff notice and a brief opportunity to cure."

No catalyst fees under the Equal Access to Justice Act

In the old days, when the plaintiff brought a civil rights case against the government or a private entity, he was considered the "prevailing party" if the defendant changed the very policy or rule that gave rise to the lawsuit. While the policy change may have mooted out the suit, if the policy change gave the plaintiff what he wanted in the first place, then the plaintiff was considered to have won the case and was therefore allowed to recover his legal fees from the defendant. We called that the "catalyst theory" of attorneys' fee liability.

The catalyst theory died in 2001, when the Supreme Court issued Buckhannon v. West Virginia, 532 U.S. 598 (2001), a sea change in attorneys' fees case law since most of the federal courts had adopted the catalyst theory. On the basis of its reasoning, courts have applied Buckhannon to every statute that allows for fee-shifting. One by one, these statutes are being narrowly interpreted under Buckhannon. You can now include the Equal Access to Justice Act in that category.

The case is Ma v. Chertoff, decided on November 4. This case involved the government's failure to allow the plaintiff to become a lawful permanent resident. Under the catalyst theory, if the plaintiff won, then his attorney recovered all legal fees expended in handling the case, which can be quite substantial. But the government gave in and granted Ma's application mid-litigation and gave him a green card. His lawyer moved for legal fees. Motion denied. Following the lead of other appeals courts which have ruled on this issue, the Court of Appeals holds that Buckhannon's reasoning applies to the fee statute governing these cases, the Equal Access to Justice Act. So the plaintiff wins the case, but his lawyer does not get paid.

False arrest claim reinstated

The Court of Appeals has reinstated a false arrest and malicious prosecution claim which the district court dismissed on summary judgment. The Second Circuit issued this ruling as an unpublished summary order, but since the Court reversed the district court, it's always newsworthy.

The case is Ramos v. City of New York, decided on November 4. Ramos claimed he was falsely arrested and maliciously prosecuted in connection with his arrest for second degree harassment and resisting arrest. Of course, Ramos has to prove the arrest lacked probable cause to prevail in this lawsuit. The resisting arrest claim boostraps on the harassment arrest. If the harassment arrest lacked probable cause, then there is no resisting arrest.

Ramos gets a trial because in order to arrest for second degree harassment, the arresting officer had to personally witness the violation. You can look it up: Criminal Procedure Law section 140.10(1)(a). In this case, that did not happen. The officer did not witness the event, and no one apparently looked up the harassment law. "It is uncontested that the offense did not occur in the officer's presence," the Second Circuit tells us. Therefore, the jury can find Ramos was arrested without probable cause. As the district court gave short shrift to the malicious prosecution claim, the Second Circuit tells it to re-consider that claim on remand.

Being smacked around by a supervisor is not an "adverse employment action"

A guy working in a post office was assaulted by a supervisor. Plaintiff alleges the assault was an act of discrimination on account of his race, color and national origin. But he can't sue the post office because this assault is not an "adverse employment action."

The case is Mathirampuzha v. Potter, decided on November 3. (My write-up on another aspect of the opinion is here). The plaintiff alleged that a supervisor, Sacco, "grabbed the plaintiff's arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye. Sacco also shouted, 'Joe, I'll never let you go the Hartford plant.'" When plaintiff complained to a higher-ranking supervisor, she laughed it off. However, Sacco was issued a warning letter and transferred to another work assignment for at least a year.

Under Title VII of the Civil Rights Act of 1964, you need an "adverse employment action" to bring a lawsuit. In other words, your negative treatment must be worth suing over. At one end of the equation is job termination, clearly an adverse action. At the other end of the picture is being given a lousy photocopier, not an adverse action. The courts apply a sliding-scale analysis in this area.

The Court of Appeals says, "Only in limited circumstance does a single, acute incident of abuse qualify as an adverse employment action." So, in hostile work environment claims, a single act of sexual harassment may qualify if it's "extraordinarily severe," such as rape. The question is whether the single act of non-sexual abuse represents an "intolerable alteration of the plaintiff's working conditions." No dice for plaintiff.

Since the plaintiff continued to work at the plant, he was not denied salary or responsibilities, and the assault did not bring lasting harm to his ability to do his job, it's not an adverse action. The Second Circuit explains,

The physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff's working conditions -- unlike, for example, a rape, or an obscene and humiliating verbal tirade that undermines the victim's authority in the workplace. The Postal Service's response to the incident, moreover, while not immediate, ultimately ameliorated the plaintiff's working conditions, as Sacco was eventually disciplined and transferred to another work assignment for at least one year. Although a more severe incident of harassment or abuse could constitute an adverse employment action, the brief incident in this case, however regrettable, does not meet the "extraordinarily severe" standard.

One final ruling by the Court of Appeals in this case. Plaintiff alleged that he was denied a transfer for discriminatory reasons. But that claim fails because he cannot show that anyone with a discriminatory motive was responsible for this. While Sacco assaulted plaintiff, Sacco had nothing to do with the transfer denials. The Court of Appeals does note that its precedents support the position that some transfer denials constitute adverse employment actions if they objectively create a significant change in working conditions. But that gray area is not fleshed out here since plaintiff cannot show that anyone with discriminatory animus denied him the transfers.

Administrative exhaustion requirements strictly enforced in Title VII claim

Some cases do not get out of the starting gate. That's because an administrative filing requirement has to be satisfied. This is the case in employment discrimination lawsuits under Title VII of the Civil Rights Act of 1964. It's the reason why a Title VII case arising from a post office dispute was dismissed.

The case is Mathirampuzha v. Potter, decided on November 3. Plaintiff worked at the post office. His boss assaulted him on the job. Plaintiff claims the assault was for discriminatory reasons, so he brings an internal EEO complaint with his employer, as required when you work for the Federal government and want to pursue a discrimination claim. But the problem is that the internal EEO complaint does not raise a slew of other allegedly discriminatory actions against plaintiff. So when he brings his lawsuit in Federal court, the question is whether the court has authority to hear these other claims.

The general rule is that your administrative EEO complaint has to raise all your issues. The same rule applies if you work in the private sector and have to file an administrative charge of discrimination with the Equal Employment Opportunity Commission. If you leave out certain claims in the administrative filing, however, the Federal court can still consider them if those omitted claims are reasonably related to the claims that you did raise in the EEO/EEOC filing. The reason for this is that the omitted claims might fall within the scope of the administrative investigation into the claim that you expressly filed. A thorough investigation might necessarily include an investigation into the omitted claims which the investigator stumbles upon.

This exception to the requirement that plaintiffs fully exhaust all their claims in the administrative process before filing suit in Federal court has its limits. Those limits are explored in this case. The plaintiff's claim that a manager went postal against him in the post office for discriminatory reasons is not reasonably related to his other claims (not alleged in the EEO charge) that the assault was retaliatory or that his manager had verbally harassed him, denied him lunch breaks and other privileges and subjected him to a hostile work environment. In dismissing the plaintiff's claims other than the assault charge, the Court of Appeals reasons, "We do not think that the plaintiff's allegation of a single incident of aggression by Sacco could reasonably be expected to blossom into an investigation covering allegations of unrelated misconduct by Sacco dating back several years."

In other words, plaintiff's claim that he was assaulted for discriminatory reasons is too discrete from the other, omitted claims relating to longstanding harassment and discriminatory job actions. In order to pursue the other claims in court, he had to raise them in his EEO charge. In making its point, the Court of Appeals cites a recent Supreme Court case on the issue of statutes of limitation and sexual harassment, Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), for the proposition that hostile work environment claims are different from discrete acts like promotion denials and job terminations.