Bergstein & Ullrich prevail in sexual harassment case

Jury awards Middletown woman $25,000 in harassment case; Former boss filing for bankruptcy

By Oliver Mackson
Times Herald-Record
Posted: February 28, 2009 - 6:00 AM

GOSHEN — A state Supreme Court jury on Wednesday awarded Felicia Cheathem of Middletown $25,000 for sexual harassment by her former boss.

Cheathem sued Stephen Ostrow and his Great American Brochure and Catalog Co. in 2005, seeking $150,000 in damages. In court papers, she accused him of groping her breasts, making sexual remarks and occasionally lifting her blazer to look at her buttocks. She said the conduct forced her to leave her job as a photo assistant after less than a month.

Ostrow lives in the Town of Mount Hope. His company is based in Slate Hill. The case went to trial last week, before Justice John K. McGuirk. The jury found Ostrow liable for damages, and McGuirk told them to return on Monday to decide a damage amount. On Monday morning, 45 minutes before the damage phase of the trial was to start, Ostrow and his wife, Monica, filed for protection from creditors under Chapter 13 of federal bankruptcy law. A bankruptcy petition stays most other court proceedings, but at the request of Helen Ullrich, one of Cheathem's lawyers, U.S. Bankruptcy Court Judge Cecilia Morris allowed the state trial to continue.

Ostrow's lawyer, Richard Corde, said that the verdict might be appealed and that jurors he spoke with after the verdict felt they'd made a mistake in finding Ostrow liable. "They were trying to come up with a dollar amount that was as low as possible," he said. Corde also said that Ostrow had been considering a bankruptcy filing "for quite some time" before the trial.

Concurrences are not majorities

Something interesting happened over a year ago when one of the judges on the Court of Appeals, Sonia Sotomayor, suggested in a concurring opinion that the Second Circuit has long been misinterpreting the Supreme Court's qualified immunity doctrine. This may mean very little to lay-persons, but qualified immunity is actually quite important, because it means a civil rights case can be dismissed if the court finds that the public officer defendant did not violate clearly established legal standards or he acted in an objectively reasonable manner in arresting or otherwise taking action against the plaintiff. However, as the Court of Appeals reminds today, concurrences are not majorities.

The case is Leone v. Fischer, decided on February 27. In this case, plaintiff sued the police officer over a bad search warrant. The trial court dismissed the case on the basis that the officer had an objectively reasonable basis to arrest the plaintiff. Now, a good lawyer will make any nonfrivolous arguments that are necessary to win the appeal. Here, Leone's attorney argued that "the district court applied an improvidently strict legal standard by considering whether 'officers of reasonable competence could disagree on whether there was probable cause to arrest.'”

Counsel said that Judge Sotomayor's concurrence in Walczyk v. Rio persuasively suggests that this analysis plays no part in qualified immunity analysis and that the only question should be whether the officer violated clearly-established case law in making the arrest. Hey, why not cite an authoritative concurrence on an issue like this? I would do it.

The Court of Appeals in the Leone case was probably impressed that someone actually reads concurring opinions. But that's not enough to win this appeal. As the Court of Appeals observes, "Leone’s argument, which is based on a concurring opinion in Walczyk v. Rio, 496 F.3d 139, 169-70 (2d Cir. 2007) (Sotomayor, J., concurring), was expressly rejected by a majority of the panel in that case, and is not the law of this Circuit." So the Court of Appeals affirms the dismissal of this case.

2d Circuit upholds restaurant food labeling law

New York City enacted a law requiring restaurant owners to tell customers about the nutritional content in the food. Or the lack thereof, as the case may be. The restaurant owners challenged the law, claiming the First Amendment prohibits the government from compelling this speech. The Court of Appeals has upheld the law.


The case is New York State Restaurant Association v. New York City Board of Health, decided on February 17. The law "requires roughly ten percent of restaurants in New York City, including chains such as McDonald’s, Burger King and Kentucky Fried Chicken, to post calorie content information on their menus and menu boards." The trade group's First Amendment claim is not necessarily off the wall, but this is a tough argument. Putting aside the settled notion that "the protection afforded commercial speech is somewhat less extensive than that afforded noncommercial speech,” commercial speech enjoys even less protection when the speech is factual in nature, as opposed to a controversial or political statement that the businesses are being forced to repeat. In 2001, the Court of Appeals made this clear:

Commercial disclosure requirements are treated differently from restrictions on commercial speech because mandated disclosure of accurate, factual, commercial information does not offend the core First Amendment values of promoting efficient exchange of information or protecting individual liberty interests. Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the “marketplace of ideas.” Protection of the robust and free flow of accurate information is the principal First Amendment justification for protecting commercial speech, and requiring disclosure of truthful information promotes that goal. In such a case, then, less exacting scrutiny is required than where truthful, nonmisleading commercial speech is restricted.

That block quote is from the Sorrell case. The Restaurant Association argues that Sorrell is not good law because a Supreme Court decision from that same year, United States v. United Foods, 533 U.S. 405 (2001), better governs the analysis. The Second Circuit disagrees, finding that the plaintiff here reads too much into United Foods which simply stands for the proposition that compelling businesses to disclose certain information is legal if it's intended to prevent deceptive advertising.


The City is allowed to compel the restaurants to disclose the caloric content to patrons because the government has an interest in controlling obesity. Under commercial speech doctrine as outlined by the Supreme Court, that qualifies as a "rational basis" for the law which is therefore constitutional and consistent with the First Amendment. In outlining why this law is rational, the Court cites recent obesity statistics and the fact that Americans are eating out more and that fast food restaurants in particular are responsible in part for the obesity epidemic. The City is therefore allowed to require restaurants to help patrons make informed decisions about what they are eating. Indeed, this decision relates quite a bit of statistical information about the negative social consequences resulting from the bad food choices many Americans are making. I would guess these statistics came out of one of the many amicus briefs that were filed in the case. Isn't that what amicus briefs are for?

Inmate cannot satisfy PLRA's "imminent danger" exception

Inmate litigation is not what it used to be, not since Congress enacted the Prison Litigation Reform Act in 1995, intending to scale back frivolous inmate litigation. The irony is that, with all new legislation, it takes many court decisions (and therefore more litigation) to fully interpret the law.

The case is Pettus v. Morganthau, decided on January 28. One of the provisions of the PLRA is that three prior frivolous lawsuits means that the inmate cannot file another case in forma pauperis, a latin phrase that refers to someone who is without funds to pursue the normal costs of a lawsuit. An inmate who is granted IFP status can proceed without paying the filing fee. Since most inmates cannot afford the $350.00 filing fee in Federal court, IFP status can make or break the case.

The PLRA has an escape hatch for inmates who have filed three frivolous suits in the past but who need to file another IFP case now. The inmate has to show that he is in "imminent danger of serious physical injury" under 28 U.S.C. § 1915(g). This exception seems simple enough. It isn't.

In Pettus, the inmate alleged that "various New York State Department of Correctional Services employees who were involved with adjudicating alleged disciplinary infractions lodged against him at the Elmira Correctional Facility or who transferred him from Elmira to the Southport Correctional Facility, a so-called supermax facility for especially violent offenders, were biased and incorrectly classified him. Pettus’s complaint also alleges that at Southport he has been surrounded by hostile, aggressive, violent inmates who beat, rob, assault, extort, and sexually abuse him, and that he has been denied access to needed medication."

This sounds like Pettus satisfies the imminent danger exception, since he is at a prison where other hostile inmates are threatening him. But careful reading of his complaint makes it clear that he is not suing anyone at his current prison, Southport. He is only suing the officials who placed him in harm's way at Southport. As the Second Circuit sees it, Pettus might be in imminent danger, but the legal standard set forth in this case requires that the complaint be dismissed.

The Circuit borrows from standing jurisprudence in holding that "there must be a nexus between the imminent danger a three-strikes prisoner alleges to obtain IFP status and the legal claims asserted in his complaint." In the standing cases, a person cannot bring a lawsuit unless there is a connection between his claims and the relief sought. It's not enough to have a claim; the lawsuit must be reasonably calculated to redressing the harm alleged in the complaint. As the Court of Appeals frames the analysis, "In deciding whether such a nexus exists, we will consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial outcome would redress that injury."

Since Pettus is not suing anyone at Southport, and it was the people in the criminal justice system who placed him there, his complaint lacks any nexus between the harms at Southport and his claims for relief. The Court holds, "Even if Pettus were entirely successful in pursuing these claims, moreover, the possibility that the judicial relief he would receive would redress the imminent danger he asserts is entirely speculative." Moreover, "The bulk of Pettus’s claims for relief are directed at asserted wrongs — such as his allegedly improper prosecution and inmate classification — that are much too attenuated from the imminent danger of serious physical injury he alleges to conclude that this danger may fairly be traced back to the asserted wrongs."

Retaliation: we know it when we see it

It's a little easier to prove retaliation claims because the sequence of events often tells the story. The plaintiff engages in protected activity (such as free speech, or a complaint about discrimination) and her termination takes place shortly thereafter, permitting an inference of retaliation. You know it when you see it, and the Courts deal with these cases one by one. Here's another one.

The case is Espinal v. Goord, decided on February 2. I wrote about Espinal in a different context (PLRA grievance exhaustion) here. But Espinal has another interesting holding: when to draw an inference that government officials have retaliated against someone in violation of the civil rights laws.

A state prison inmate, Espinal in June 1998 brought a civil rights lawsuit against corrections officers at Greenhaven Correctional Facility. That case was dismissed on June 14, 1999. On December 17, 1999, after Espinal had a non-violent dispute with another inmate, some corrections officers escorted him to the medical clinic for a "fight exam." Espinal says the officers beat the hell out of him for a half hour and warned him to keep quiet about the beating. They told him, "this is what happens to inmates when they submit law suits against us" and, according to the Court of Appeals, they threatened to kill Espinal.

So the question is, can Espinal sue the officers for retaliation under Section 1983 (the all-purpose civil rights statute)? The district court said no, but the Second Circuit says yes. The lawsuit that he previously filed is protected First Amendment activity (even though the Court of Appeals has also held that public employees who file certain lawsuits are not engaging in protected First Amendment activity because these cases are usually unique to the plaintiff and not matters of public concern). In the understatement of the year, referencing the relevant legal standard, Court of Appeals says that "we have no trouble finding on the record in this case that there is a triable issue of fact as to whether a severe beating by officers over the course of thirty minutes would deter a person of 'ordinary firmness' from exercising his rights." I would say so.

The harder question is whether the time lag between the first lawsuit and the beating permits the inference of retaliation. It could, the Second Circuit says. Borrowing from employment discrimination cases which stand for the same principle, the Second Circuit says that "a plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action." As some employment retaliation cases find a retaliatory link after eight months and others reject that link after only three months, there is no bright line rule on this; the courts know it when they see it. The Court of Appeals puts it this way: "This has allowed our Court to exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases."

The Court says that although the retaliatory beating was 1.5 years after Espinal brought the first lawsuit, the clock can start ticking after it was dismissed, which was six months before the beating. That's close enough for retaliation because, the Court says, "[i]t is plausible that the officers waited to exact their retaliation at an opportune time -- as when Espinal was involved in a fight with another inmate -- in order to have a ready explanation for any injuries suffered by Espinal."

This is interesting reasoning. I have seen plaintiffs' lawyers attempt to link temporally separate events in order to pursue a retaliation claim on the theory that the bad actors used the first available opportunity to exact revenge. Some judges did not like this reasoning, accepting the argument instead that the two events were too far apart as a matter of law. In this pro se inmate retaliation case, the Court of Appeals has now accepted the contextual approach to retaliation claims.

BOCES is not an "arm of the state" under the 11th Amendment

Little known fact for the non-lawyers out there: with some exceptions, you can't sue an arm of the State of New York in federal court for a civil rights violation. An easy example is that John Smith can't sue the Department of Health in federal court for age discrimination. Harder cases turn on whether the defendant is an arm of the state. We now know this: BOCES is not an arm of the state for Eleventh Amendment purposes.

The case is Gorton v. Gettel, decided on January 28. Collecting its recent cases in this area, the Court of Appeals (Jacobs, Walker and Calabresi) says that "[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity. Eleventh Amendment immunity extends to “state agents and state instrumentalities that are, effectively, arms of a state.” The uninitiated might think that BOCES is an arm of the state since it enforces state educational policy. But it's not so simple. The case law identifies a multi-part standard for solving this puzzle:

(1) how the entity is referred to in its documents of origin; (2) how the governing members of the entity are appointed; (3) how the entity is funded; (4) whether the entity’s function is traditionally one of local or state government; (5) whether the state has a veto power over the entity’s actions; and (6) whether the entity’s financial obligations are binding upon the state.

Got that? The ultimate issue in these cases is whether the lawsuit threatens the state's fisc. Put another way, if the plaintiff wins, who pays the damages? If the money comes out of the state treasury, then the defendant is an arm of the state. Since the Second Circuit has previously held that local school districts and school boards are NOT arms of the state even though they execute state educational policy, that militates against finding that BOCES is an arm of the state, since BOCES shares common features with school boards and school districts.

As the six part test points in different directions as to BOCES, the ultimate question is whether this suit would threaten the state treasury. The Court of Appeals finds that it does not, and the panel concludes, "Sullivan County BOCES is a locally run entity affiliated with local school districts; its liability would not reflect adversely on New York State. And a judgment in this case would not be paid directly from the New York State treasury."

Inmate grievance was good enough for follow-up lawsuit

In the mid-1990's, Congress made it harder for inmates to bring civil rights lawsuits. Under the Prison Litigation Reform Act, inmates have to first file an internal grievance with jail authorities before they bring a lawsuit. Of course, every new rule raises more questions. This time around, the question is: How specific does the internal grievance have to be?

The case is Espinal v. Goord, decided on February 2. The trial court dismissed Espinal's case because his written grievance did not identify the corrections officers who allegedly subjected him to excessive force and denied him necessary medical treatment. The Court of Appeals reinstated the Complaint thanks to a recent Supreme Court ruling which clarifies whether the grievances are properly drafted.

The PLRA exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” The Supreme Court said this in Porter v. Nussle, 534 U.S. 516, 532 (2002). Then, in Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court said that the prison's regulations govern whether the inmate has to name the officers who violated his rights.

Since Espinal did not name the officers in his grievance, the district court dismissed the case. But, under Jones v. Bock, we now look to the state's regulations for the right answer. Since, as the Court of Appeals notes, "The New York . . . regulations do not state that a prisoner’s grievance must name the responsible party," Espinal did not do anything wrong, as the regulations only require “a concise, specific description of the problem.” The Complaint is reinstated, as the grievances were enough to place jail officials on notice of his allegations and they could therefore investigate them.