Informal complaint about "the guys" supports retaliation verdict

Retaliation cases under Title VII of the Civil Rights Act of 1964 require the employee to complain in good faith about employment discrimination. If she does complain in good faith, she can't be fired or otherwise punished. A vexing question that has arisen over the years is: exactly what constitutes a good faith complaint of discrimination?

The case is Hubbard v. Total Communications, decided on September 30. This is a summary order affirming the plaintiff's verdict after trial, so the Second Circuit does not provide all the evidence. But it does summarize the law:

This court has interpreted the opposition clause to protect not only the filing of formal discrimination charges, but also “informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).

The jury found that Hubbard did complain about discrimination. Here is what she told a supervisor in an email:

IT IS REALLY NICE TO FIND OUT THAT THE ENTIRE SERVICE DEPT GOT THEIR REVIEW/RAISES THAT WERE DUE IN JULY 2003. WHICH WOULD BE 10-12 GUYS/TECHNICIANS.” (emphasis added).

It's not good Internet etiquette to send emails in capital letters, but the jury must have thought this tactic got the attention of the people who retaliated against Hubbard. This email does not explicitly state that Hubbard thought she was the victim of discrimination. One well-known case where the plaintiff's complaints were not enough to trigger the anti-retaliation provision was Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276 (2d Cir. 1998), where the plaintiff complained about unfair treatment but did not provide enough particulars to suggest she was really speaking out against gender discrimination. Many retaliation cases have been dismissed under Galdieri-Ambrosini's reasoning.

But in referencing how the "guys" got raises, Hubbard satisfies the legal standard in letting management know she was complaining about discrimination. The Court of Appeals holds that "This informal complaint of discrimination is enough to satisfy the protected activity requirement under Title VII."

The police thought the clown was a bomber

Some people are afraid of clowns. The New York Police Department was afraid, but the officers didn't know he was a clown. They thought he was a bomber. The clown brought a lawsuit. He proceeds to trial on an excessive force claim.

The case is Alhovsky v. Ryan, 2009 WL 2432688 (S.D.N.Y. Aug 7, 2009). Alhovsky is a professional clown. Let Judge McMahon introduce the case:

Alexander Alhovsky is a professional clown and magician. He spends his days in central Park, entertaining children; he commutes to work on his bicycle. One of Alhovsky's specialties is creating balloon animals. In this line of work, one needs either an extremely powerful set of lungs or a mechanical device that can blow up lots of balloons. Alhovsky uses the latter: a Majiloon battery-powered balloon inflation pump. He carries the pump in a Majiloon-issued fanny pack; the air hose, which was painted with the colors of the rainbow, protrudes from the pack and hangs alongside it.

One day after entertaining the kids the clown rode his bicycle to Starbucks and accidentally left behind the inflation pump, which has wires sticking from it and looks like a bomb to the uninitiated. It certainly looked that way to the Starbucks manager. Again, Judge McMahon: "At closing time, the shift manager for Starbucks noticed the fanny pack and opened it. Inside, she saw a mechanical device with wires protruding from it, Thinking it might be a bomb, the manager showed it to a co-worker, who immediately (1) threw the fanny pack out of the store onto the sidewalk (!) and (2) called 911. The Bomb Squad arrived shortly thereafter."

Of course, the Bomb Squad does not play games. New York City does not need another explosion. If you deliberately place a false bomb in public, you could be arrested for a Class D felony. While the police were trying to figure out who left this potential hoax in Starbucks, the clown went about his life, figuring that someone stole the inflation pump. He used a spare pump. The surveillance tapes showed that Alhovsky was a regular customer; the police wanted to ask him questions. One day, he whizzed by on his bicycle, and the police surrounded him. Judge McMahon colorfully describes what happened next:

Alhovsky did not get off his bike voluntarily, although he may have been ordered to do so. He was knocked off or grabbed off the bike. He was punched in the kidney and fell to the ground, landing on his shoulder. One officer screamed that he was going to “blow his fucking head off” while another officer put a knee in his face. He was handcuffed and kicked. His pants fell down, exposing his genitals to children playing across the street, some of whom he recognized as “clients.”

Alhovsky was “in shock” and wanted the officers to “stop hurting me.” He was afraid that he “might not even survive this.”

Alhovsky was pulled up by his hair and slammed against the window of a Chirping Chicken store. The owner of the store, Maria Psaris, who knew Alhovsky as a customer, saw plaintiff's face being slammed against the 66th Street window while his hands were cuffed and he was on his knees. Psaris also saw one officer with his weapon drawn.

When [officer] Alfonso arrived at the site, Alhovsky was on the ground surrounded by police officers. Alfonso removed the fanny pack from Alhovsky's waist and called Emergency Services. The NYPD cordoned off the area around the fanny pack and forced everyone in nearby stores to evacuate while the Bomb Squad investigated the package.

Next thing Alhovsky knows, he's at the police station, being questioned by the police. Alhovsky has no idea what's going on. He asks if he's being questioned for murder or rape. No, an officer said, "you're in far deeper shit than this, buddy, and you're going in for life." Eventually, Alhovsky convinced the police that it was not a bomb, but a balloon pump. They let him go. He sued for false arrest and excessive force in violation of the Constitution.

What happened to the clown may seem outrageous, in that the police thought the balloon device was a bomb and they treated him like a bomber, taking him to the police station for questioning. But the fact that Alhovsky was innocent does not mean the police did not have probable cause. Judge McMahon finds the police did have probable cause to believe that the clown had left behind a hoax bomb in violation of the penal law. The police did nothing wrong in taking him to the station for questioning, and they were not required under the law to ask him questions at the scene and clear up the matter right then and there. What is more, when the police ran into Alhovsky on his bike, he was carrying the same device; the police reasonably thought this guy was planting hoaxes around Manhattan. This gives the police probable cause to stop and question him at the station. Vindicating the officers on the false arrest claim is a somewhat clunky ride; the judge does cut apart some of the legal arguments of both sides, stating that "plaintiff's argument makes no sense" and defendants raised a "red herring."

The clown does have a case for excessive force. The police smacked him around when they saw him riding his bike. While plaintiff did not suffer serious injuries, and the police may have been justified in using some force in getting him to stop biking past them, Judge McMahon concludes:

the coup de grace is that a disinterested witness -- the owner of the small business outside of which the encounter happened -- has submitted sworn testimony about seeing a police officer slam plaintiff's head against her store window while an officer holding a gun looked on. She further testified that plaintiff (whom she knew and recognized) was on his knees and in handcuffs when this assault occurred. If this be true, then there was no need for any officer to slam plaintiff's head into a plate glass window in order to subdue him or to effect his arrest. The act of slamming plaintiff's head into the against the glass pane, without more, constitutes excessive force if it occurred as the disinterested witness said. It is of no moment that plaintiff did not suffer any serious physical injury as a result; it is not objectively reasonable to slam a man's head into a glass window if he is already subdued.

Pro se inmates win religious discrimination appeal

Congress has gone out of its way to provide inmates certain constitutional rights under the First Amendment's clause guaranteeing the free exercise of religion. How this came about is a long story which starts with a Supreme Court decision written by Justice Scalia in 1990, Employment Division v. Smith, 494 U.S. 872 (1990), which altered the legal standards for Free Exercise claims. Congress tried without success to overrule the Smith ruling, and when the dust settled, the best way to do it was the Religious Land Use and Institutionalized Persons Act, or RLUIPA.

Under RLUIPA, the states cannot restrict inmate religious practices without a compelling reason. Even if the reason is compelling, the government has to show that the restriction was the least restrictive way to achieve that compelling interest. (Because of what the Supreme Court did in Employment Division v. Smith, RLUIPA's consequence is that inmates have greater religious freedom rights than the rest of us). This all plays out in Jova v. Elmore, decided on September 28, where the Second Circuit reinstated the case on behalf of two inmates who practice the Tulukeesh religion. The inmates represented themselves on appeal, by the way.

Borrowing from the legal reasoning of other federal appeals courts which have taken up this issue, the Second Circuit find that prison security is a compelling government interest. But the government has to support its argument with evidence, not speculation or after-the-fact rationales. In this case, the plaintiffs claimed their religion requires a group setting and they cannot worship alone. The jail responded that in order to have a group setting, the inmates have to find outside religious clergy to officiate. Among other things, the inmates also want martial arts training as part of their religious exercises and a particular diet. The government is able to convince the court with voluminous evidence in the form of affidavits that the restrictions are "justified by powerful security and administrative interests."

Not so easy on the second set of legal issues on appeal: whether the government used the least restrictive means to protect security in the prison. As it does not want religious meetings to serve as a proxy for gang activity, the government is able to justify its requirement that the inmates use an outside chaplain to officiate their religious exercises. If the inmates cannot find someone, an inmate can facilitate the meetings provided "the religion is known outside the institution." For obvious reasons, the government is also able to prevent martial arts training ("potentially violent physical activities") in the jail.

However, it is unclear to the Court of Appeals whether the dietary restrictions are narrowly-tailored. The inmates need a vegan diet that does not include soybeans or certain soy-related products. The Court of Appeals wonders why the jail cannot provide an entirely vegetarian menu to inmates who request it. If the jail can do so, then its proposed alternative menu may not be acceptable. The case is remanded to the district court to figure this out.

Garcetti standard dooms Almontaser's free speech case

A Southern District judge has dismissed a First Amendment lawsuit brought by a high school principal who was forced to resign after she gave an interview with the New York Post about a controversial t-shirt which made reference to the Arab-Israeli conflict.

The case is Almontaser v. New York City Department of Education, 2009 WL 2762699 (S.D.N.Y. Sept. 1, 2009) decided by Judge Stein. This case previously went to the Second Circuit, which affirmed Judge Stein's order denying Almontaser's motion for preliminary relief. That case can be found at 519 F.3d 505 (2d Cir. 2008). The Court of Appeals' ruling is among the few to interpret the Supreme Court's ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006), which altered the rules governing the free speech rights of public employees. I wrote about Amontaser's Second Circuit ruling here.

Almontaser was interim acting principal of Khalil Gibran International Academy. The New York Post wanted comment on the t-shirt. The Board of Education make arrangements for the telephonic interview, and it also arranged, guided and directly participated in the interview. Almontaser testified that she gave the interview "because I was told it was in the best interest of the school. Otherwise I wouldn't have done the interview." Although she claimed the newspaper misquoted her, it was her comments during the interview which led to her forced resignation.

The case began when an activist group accused Almontaser of associating with an organization known as Arab Women Active in the Arts and Media which distributed t-shirts bearing the words "Intafada NYC." When the New York Post interviewed Almontaser, she denied any relationship with that organization and, according to the Court of Appeals, the New York Post misquoted her in stating that the t-shirts were an "opportunity for girls to express that they are part of New York City society."

Prior to 2006, Almontaser would have a great case. The Supreme Court has held for at least 40 years that public educators (and all public officials, really) have the right to speak out on matters of public concern without fear of reprisal. There were always limits to that rule (which covers whistleblowers also), and the plaintiff could lose the case only if the speech was too disruptive of the public workplace or she would have been fired even without the speech.

It's not 2005 anymore. In Garcetti, the Supreme Court limited the rights of public employees in holding that speech made in the course of the plaintiff's official job duties is not protected under the First Amendment, only speech made as a citizen. No matter how important it may be, speech made in the course of your official duties is no longer speech on a matter of public concern; it's merely job speech, treated no differently under the Constitution than a watercooler conversation about the Yankees.

A lot of cases have gone out the window under Garcetti's new formulation. Almontaser's is one of them. What kills the case is the fact that "the parties agree that Almontaser's official duties included speaking with the press." As the interview owes its existence to Almontaser's official responsibility to interact with the press on the school's behalf, the speech is unprotected and management can force her to resign.

New legal standard dismisses inmate's wrongful death claim

Inmates who sue their captors for constitutional violations have a difficult legal standard to satisfy. In 1994, the Supreme Court ruled that it is not enough for the inmate to show that the prison employee (usually a guard or someone in the medical office) was deliberately indifferent to his serious medical needs (an objective standard). That case was Farmer v. Brennan, 511 U.S. 825 (1994). Under Farmer, the inmate has to show that his captor consciously disregarded a risk of harm (a subjective standard). Farmer involved prisoners who were already convicted of a crime and are in state custody. Does the Farmer standard also apply to pretrial detainees who have not yet been convicted of anything? The answer is now Yes.

The case is Caiozzo v. Koreman, decided on September 22. The case stems from an inmate who died shortly after entering county jail on a harassment charge. The intake staff mistakenly thought the inmate was intoxicated upon entering the jail and, in fact, he had a serious drinking problem. The mistaken belief that the inmate was drunk prompted staff to place him in a "continual observation" setting. After a difficult first night of spasms and other problems, he was rushed to Albany Medical Center, where he died from a seizure due to acute and chronic alcoholism. His family sues the jail under the Constitution for deliberate indifference to serious medical needs. They claim that staff should have known the inmate was in danger of severe alcohol withdrawal and that this oversight caused his death.

The jail officials win the case. But not before the Court of Appeals (Sack, Katzmann and Kelly) deal with the ramifications of the Farmer precedent, now on the books for 15 years. Farmer is an Eighth Amendment ("cruel and unusual punishment") case which covers prisoners who were already convicted of a crime. For pretrial detainees, the due process clause of the Fourteenth Amendment applies. Farmer applied a subjective test because in Eighth Amendment cases the inmate is challenging an aspect of his punishment which necessarily requires that jail personnel actually be aware of an excessive risk to the inmate's health and safety. Over the years, the Second Circuit has not gotten around to deciding if pretrial detainees have to satisfy the same legal standard. However, the circuits around the country have already resolved this issue, favoring the jail officials and holding that a pretrial detainee must prove that the defendant knew about and disregarded a risk of harm to the inmate.

This is not a new rule, though. In 1977, the Second Circuit held in Arroyo v. Schaefer, 548 F.2d 47 (2d Cir. 1977) that this heightened standard should apply. Arroyo pre-dates Farmer by 17 years. Post-Farmer, the Court of Appeals assumed the Arroyo standard still applied. Today the Court of Appeals makes it official. The Farmer standard applies whether the inmate is a pretrial detainee or a convicted prisoner.

Unfortunately for the plaintiff in today's case, the revised legal standard requires dismissal. Plaintiff argues that jail personnel should have known that Caiozzo was in immediate danger of alcohol withdrawal and that appropriate action could have saved his life; instead they thought he was intoxicated and therefore did not act accordingly. Although jail personnel incorrectly thought he was simply intoxicated and no in danger of imminent severe alcohol withdrawal, there is no evidence that personnel was actually aware of any imminent danger. Without that evidence, the case is dismissed.

"Arguable probable cause" dooms false arrest case

I used to have cases before a federal judge who said it was a "ticket to federal court" when a criminal defendant was acquitted in state court (or the charges were dropped). This meant that if the police arrested someone but the charges didn't stick, the defendant could turn around and sue the police. Well, he can sue the police, but that doesn't mean he'll win the case. Quite often, these false arrest cases do not survive summary judgment.


The case is Droz v. McCadden, decided on September 14. Droz was arrested for criminal contempt when he acted out in Town court (he would not let the court officer see what was in his brown paper bag). The Town Judge, Shirley Herder, summoned the police, who arrested Droz. That officer was McCadden. The charge was eventually dismissed. Droz gets a ticket to federal court.


That Droz gets to sue McCadden doesn't mean he wins the case. There is no false arrest if the police have probable cause to arrest. Probable cause can exist even if the charges are dropped or a jury acquits the defendant. This is because the "beyond a reasonable doubt" standard for conviction is much higher than the probable cause standard.


McCadden finds a more obscure way to win the case. The parties agreed that McCadden reasonably believed that he was acting at Town Judge Herder's behest in arresting Droz. In fact, Droz's lawyer actually admitted that "McCadden ... relied upon his alleged understanding of Herder's direction to him to arrest Droz for criminal contempt." The Court of Appeals (Sack, Winter and Cogan) is a little flummoxed at counsel's weasly language about McCadden's "alleged understanding," but it's close enough to get the case dismissed. As the Second Circuit writes, "Droz concedes, then, that McCadden thought he was operating at the direction of Herder when he arrested Droz."


This belief was reasonable because Droz also "concedes that Herder agreed ... that Droz's actions should be reported to the police." So when McCadden arrested Droz for criminal contempt, his reliance on Herder's judgment gets him off the hook. This brings the case within the gray area known as "arguable probable cause," a defense to false arrest cases. Arguable probable cause is enough to win, and by its very terms this doctrine is more favorable to the police than mere probable cause. Under arguable probable cause, the case is dismissed if the officer "could have reasonably believed that probable cause existed in the light of well established law." On the facts of this case, McCadden has arguable probable cause, and Droz's ticket to the courthouse gets him nowhere.

Don't talk to jurors about the Yankees during trial

What do you do when a juror talks to a witness during a break in the trial? When the trial begins, the judge tells the jurors they cannot speak to any of the parties or their attorneys, and that if a juror runs into anyone associated with the trial in the elevator (or anywhere else for that matter), the juror should not be offended if the defendant or an attorney ignores the juror.


The same rules apply when a juror unwittingly talks to a witness during a break. The judge still has to decide if the inappropriate contact requires some kind of action, i.e., a mistrial or sending the juror home. That's what happened in Luca v. County of Nassau, where the Court of Appeals on August 19 affirmed a Title VII retaliation verdict in favor of the plaintiff (a verdict in which the plaintiff received more than $600,000 in front pay, by the way).


A juror was seen talking with a witness. The witness said he did not know he was talking to a juror. They were not talking about the case; they were talking about the Yankees. It's not illegal to talk baseball during breaks in the trial, but, really, jurors should not be talking to witnesses about anything. This is certainly enough to file a non-frivolous appeal. But these appeals are not easy to win. The legal standard is as follows: "To secure reversal on this ground, defendants must demonstrate both juror misconduct and ensuing prejudice." The trial judge has to make a decision, but she enjoys great flexibility in dealing with the problem.


As the Court of Appeals puts it: "Because we recognize that in handling incidents of possible juror misconduct, a trial court confronts a 'delicate and complex task,' we accord it 'broad flexibility.' The court must be sure that any investigation it conducts does not “create prejudice by exaggerating the importance and impact of what may have been an insignificant incident.' Moreover, '[i]n many instances, the court’s reiteration of its cautionary instructions to the jury is all that is necessary.'”


Under this broad standard, the Court of Appeals lets the employment discrimination verdict in favor of the plaintiff stand. In dealing with the problem, the trial court did not speak to the juror; it only questioned the witness about the conversation. This is fine, since no one asked the court to speak to the juror. The trial court has discretion to assess the credibility of what the parties to that conversation told him when the court investigated what happened, and his determination that the fairness of the trial was not compromised is affirmed on appeal, particularly since the court reminded the jurors to avoid any conversations with anyone associated with the trial. Moral of the story: don't talk to jurors about anything during trial, be it the Yankees or any other topic.

If you are listening to Pandora online, thank the Court of Appeals

The Court of Appeals has issued an interesting ruling which analyzes whether user-created Internet music stations require Launchcast and Pandora to pay licensing fees each time a song is played. This is the first time any of the Courts of Appeal have resolved this issue, which is must reading for anyone who wants to know why they cannot hear a particular song on demand when streaming music online.


The case is Arista Records v. Launch Media, decided on August 21. In 1971, Congress created a right to reproduce and distribute copies of sound recordings. This law did not allow copyright holders (such as record companies) to extract licensing fees from radio stations; it was understood that record companies and radio stations had a symbiotic relationship in that the companies needed their songs played on the radio without charge in order to promote the music.


By the 1990's, though, the Internet became commonplace, allowing people to copy music digitally without paying for it. The record companies worried that new technologies would destroy the industry. In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act (DPSR) which gave the copyright holders more control over the music. Any Internet-based "interactive" and paid subscription service which allowed listeners to hear a song on request must pay a licensing fee when these songs were played. This solved the industry's concern that people would stop buying music at the record store and instead listen to their favorite songs online without charge.


In 1998, Congress amended the DPSR to define "interactive service" to include a service that allows someone to hear a song as part of a program specially created for him. DPSR also defines "interactive service" to include a service where the listener hears a particular song on demand. Under these interactive services, the record companies (or some other copyright holder) receives a licensing fee whenever the song is played online. Congress suggested that "a service would not be interactive if it merely transmitted to a large number of recipients of the service's transmissions a program consisting of sound recordings requested by a small number of those listeners."


Many of us love Pandora radio and Yahoo's Launchcast. Under these services, you can type in the kind of music you want to hear, and a computer program designs a playlist that conforms to your tastes. You don't have to pay for this service, and some of us work all day with Pandora playing music through the computer. Major record companies sued Launchcast under the DPSR, claiming that the music service is structured in a way that required Launchcast to pay licensing fees when listeners create these radio stations. The record companies lost the trial before district judge Richard Owen (who incidentally ruled against former Beatle George Harrison in the 1970's for copyright infringement in a landmark case that said that Harrison subconsciously plagiarized "He's So Fine" in writing "My Sweet Lord").

In resolving this case, the Court of Appeals (Wesley, Calabresi and Droney) details how Launchcast works. This is interesting reading, though the Court notes that "it is hard to think of a more complicated way to 'select songs.'" Briefly, the music lover "creates" a personalized radio station by typing in her favorite artists. Launchcast then plays songs that would fit within the music lover's tastes, and she can adjust the playlist over time by rating songs and artists. But the user does not know what songs are actually on the playlist (which derives from a pool of about 10,000 songs); you only know the next song when it's broadcast by Launchcast. As many of us have discovered in using Launchcast and Pandora, you cannot select a particular song at a particular time. You have to sit and hope that song will come on sooner or later. If you create your radio station and properly rate the songs and artists, you will eventually hear that song, but you cannot hear it on demand. The Second Circuit deftly explains this process, using as examples U2's album The Joshua Tree as well as Here Comes the Sun, A Day in the Life and Eleanor Rigby by the Beatles (and if these examples reflect Judge Wesley's tastes, then we have a lot more in common than I thought).


In a blow to the record companies, the Court of Appeals holds that Launchcast is not an "interactive service" under the law. First of all, a Launchcast user cannot hear a particular song on demand. But that is not the end of the inquiry. The Court notes that "Launchcast may still be liable if it enables the user to receive a transmission of a program 'specially created' for the user." This is a closer question, but the record companies lose. The Court frames the issue: "whether the Launchcast playlists, uniquely generated for the user each time the user selects a station, are specially created and therefore interactive."


The answer is no. Launchcast does not provide a specially created program under the law "because the webcasting service does not provide sufficient control to users such that playlists are so predictable that users will choose to listen to the webcast in lieu of purchasing music, thereby -- in the aggregate -- diminishing record sales." Indeed, approximately 60 percent of the songs on the playlist are outside the music lover's control. For example, while the user has control over the genre of songs, "this degree of control is no different from a traditional radio listener expressing a preference for a country music station over a classic rock station." According to the Court, "It appears that the only thing a user can predict with certainty -- the only thing the user can control -- is that by rating a song at zero the user will not hear that song on that station again." However, "the ability not to listen to a particular song is certainly not a violation of a copyright holder's right to be compensated when [its] sound recording is played."


This ruling does not mean that Launcast pays nothing for playing the songs. It is only required to pay a much lower statutory licensing fee set by the Copyright Royalty Board. But the licensing fees sought by the record companies in this case could have put Launchcast and Pandora out of business.

Not all judicial districts are created equal

If a civil rights plaintiff wins the trial, the defendant really loses twice. It pays out damages to the plaintiff, and it pays out legal fees to the plaintiff's lawyer. Sometimes attorneys' fees litigation lasts a few years as the parties fight over the attorneys' hourly rate (which is then multiplied by the hours expended on the case in order to determine the attorneys' fees). The hourly rate depends on many things, including the lawyer's experience and accomplishments, and the judicial district where the case was filed. Not all judicial districts are created equal.


The case is Lochran v. County of Suffolk, decided on September 3. The plaintiffs won their case which alleged that Suffolk County did not permit police officers to obtain limited duty assignments during pregnancy. Then the plaintiff's lawyers moved for attorneys' fees. They wanted more than $1 million. The district court awarded $678,000. One of the reasons for the reduction was that the court thought the hourly rates were too high. In part, this was because the court applied Eastern District of New York rates, not Southern District rates. This case was a good opportunity to challenge the distinction between the Eastern and Southern Districts on the hourly rates.


The Southern District includes Manhattan, The Bronx and the suburban counties to the north, including Orange and Dutchess. Eastern District includes Brooklyn, Queens, Nassau and Suffolk. The arbitrary boundary separating the judicial districts means that Orange County lawyers may receive higher rates than lawyers situated on Court Street in Brooklyn. Southern District rates are among the highest in the country. Eastern District rates are high, but nowhere near the rates authorized in the Southern District.


You wouldn't know it from reading the opinion, but this appeal squarely challenged the Eastern/Southern District fee distinction. (I happened to be at the oral argument). Plaintiff's counsel had their offices in Manhattan, not the Eastern District. They did not want Eastern District rates but the higher Southern District rates. They argued that there is no reason for the distinction between the districts for purposes of setting the hourly rates. The Court of Appeals (Jacobs, Sack and Kearse) implicitly rejects that argument by relying on its recent decisions holding that the appropriate hourly rate is determined by the district in which the case was filed, and that we ask what a hypothetical thrifty client would pay for legal services. Read all about the presumption in Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008). In Lochran, the Court of Appeals holds:

In this case, the district court declined to award Southern District rates, finding that plaintiffs’ choice of counsel “was not justified given the simplicity of the issues in the case, the wealth of competent civil rights attorneys in [the Eastern District], the length of time the attorneys were given to prepare for the case, and the far more limited resources being marshaled by the defendant, who was represented by the Suffolk County Attorneys’ Office.” Lochren v. County of Suffolk, 2008 WL 2039458, at *4 (E.D.N.Y. May 9, 2008). The court found that Southern District rates “would simply have been too high for a thrifty, hypothetical client--at least in comparison to the rates charged by local attorneys.” Plaintiffs have not overcome the presumption in favor of in-district rates, and the district court did not abuse its discretion in awarding fees at Eastern District rates.

In other words, the Court of Appeals agrees that the plaintiffs' lawyers were only entitled to the lower Eastern District rates and not the higher Southern District rates because the plaintiffs could have hired competent (and less expensive) Eastern District counsel rather than more expensive Southern District counsel. The Court of Appeals recognizes that in some cases, out-of-district counsel may recover higher rates on a showing of special circumstances (such as if no one in the district is able to handle the case), but this is not one of those cases.

ADEA: you can't always hide behind an independent contractor

Non-lawyers may not realize how often the Court of Appeals has to review its precedents in order to limit their applicability to new cases. The Second Circuit has done that in a ruling that grants older job applicants additional protection under the Age Discrimination in Employment Act.

The case is Halpert v. Manhattan Apartments, Inc., decided on September 10. Halpert applied for a job at Manhattan Apartments (MAI). An independent contractor for Manhattan Apartments told Halper that he was "too old" to show rental apartments. Halper sued under ADEA for age discrimination. The district court dismissed the case on the theory that the ADEA "does not apply to independent contractors." Well, that is true, kind of. In Robinson v. Overseas Military Sales, 21 F.3d 502 (2d Cir. 1994), the Second Circuit did say that ADEA does not cover claims brought by independent contractors. Only employees, not independent contractors, can sue for age discrimination in employment.

But Robinson does not mean that employees, or job applicants, cannot sue for age discrimination if the discriminator is an independent contractor. As the Court of Appeals puts it, "an employer ... can personally be liable for discrimination by an independent contractor ... who acts for the employer." ADEA applies no matter who is conducting the job interviews, be it a member of management or someone hired by management to conduct the interview. "If a company gives an individual authority to interview job applicants and make hiring decisions on the company's behalf, then the company may be held liable if that individual improperly discriminates against applicants on the basis of age." Robinson is officially distinguished on these facts.

It is not certain whether the interviewer, Brooks, was acting on behalf of Manhattan Apartments when he interviewed Halpert. The employer says it had no control over the manner and means by which Brooks conducted interviews and made hiring decisions. But the evidence goes both ways. For example, the interview took place at the offices of Manhattan Apartments, and Brooks and another MAI associate told the career counselor who arranged the interview for Halpert that "they (not just Brooks) were looking for someone younger." As factual issues remain over the issue of MAI's control over the interview and hiring process, the district court was unable to conclusively find that Brooks was not MAI's agent with respect to that process.

Technicalities can really ruin a good First Amendment case

The State of Connecticut contracts out some of its legal work to private lawyers. To avoid the appearance of any conflicts of interest, the state had a rule prohibiting these contracting law firms from making campaign contributions to candidates for state Attorney General. Sounds like a First Amendment problem. It isn't.


The case is Dean v. Blumenthal, decided on August 11. This case highlights some of the procedural roadblocks that can kill a good constitutional claim. Dean ran against incumbent Blumenthal for Attorney General. She needed the campaign contributions, and brought this lawsuit on the theory that the First Amendment recognizes contributions as free speech. My guess is the U.S. Supreme Court would agree with Dean. So why does the case fail?


First, mootness. The Court of Appeals has no jurisdiction to decide an academic dispute. There has to be a real case and controversy between the parties. There is none here, the Second Circuit rules. One week before the election, pending a ruling from the district court in this case, Blumenthal suspended the rule against these campaign contributions. Blumenthal never re-activated the contributions ban, and his attorney told the Court of Appeals that the ban would not be revived. Even after the district court ruled in his favor, Blumenthal did not revive the ban. While Blumenthal's promise not to resume the ban may not be enough to moot the case, "the Attorney General’s claim is bolstered by his voluntary practice of not enforcing the contractual prohibition over the past six years and of deleting the contractual prohibition over two years ago."


Also, "although '[v]oluntary cessation of illegal conduct does not necessarily render the controversy moot,' the Attorney General has further represented that Connecticut’s campaign finance legislation 'wholly and permanently superseded' the contractual bar [against these contributions], thus rendering it 'superfluous.'” All things considered, this case has mootness written all over it.


Another barrier to relief is qualified immunity. Dean sued for damages. This gets around the mootness problem if Dean can show she was somehow damaged when the rule was still in effect. If there really are damages, then all the mootness in the world will not end the lawsuit. Not so fast. Public officials are immune from suit if they did not violate a clearly-established right. It is not enough to say the First Amendment creates a clearly-established right. Under qualified immunity, the challenged conduct had to be illegal in light of existing case law on similar facts. Dean's lawyer, then, had to find cases that made it clear that the prohibition against campaign contributions in this context has already been deemed unconstitutional.


There are no such cases, the Court of Appeals holds. More to the point, there are no cases that were on the books when the campaign contributions rule was in effect. "We do not believe that a reasonable person would have known of a firmly established First Amendment right to receive campaign contributions when the challenged policy was in effect. Indeed, Dean has failed to cite any decision available during the relevant time period in which either this Court or the Supreme Court specifically held that a candidate has a First Amendment right to receive campaign contributions."



One case comes close, Randall v. Sorrell, 548 U.S. 230 (2d Cir. 2006), in which the Supreme Court struck down a Vermont statute’s limitations on campaign contributions. But Randall was decided a few years after the controversy arose in this case. Randall was not pre-existing case law relevant to the qualified immunity inquiry. Had the Supreme Court decided Randall a few years earlier, then Dean might be able to pursue this case. But that's no consolation to Dean. In constitutional law, sometimes timing is everything.

Racial harassment case gets a second look

Thomas Aulicino's supervisor at the New York City Department of Homeless Services did not like white people, and he certainly did not like Aulicino. The supervisor, Mr. John, told Aucilino that it was all right for a DHS client to call Aulicino a "white mother fuck." Mr. John also said things like "white people are lazy" and "there was some sort of white conspiracy" when white workers took the day off. Another black supervisor, Mr. Johnson, made similar statements during a later time period. Mr. John also denied Aulicino a promotion after trying to discourage him during the interview. The district court dismissed the case. The Second Circuit revives the case.

The case is Aulicino v. New York City Department of Homeless Services, decided on September 8. First, the promotion claim. The Court of Appeals (Sack, Straub and Wesley) holds that the jury may find that Aulicino was qualified for the Motor Vehicle Supervisor position because the department did not always strictly apply the job requirements, as a black employee (Johnson) who was hired for that position did not have the "necessary" dispatching experience, either, and contrary to the job posting, Johnson also lacked a Class B CDL license.

What about intent to deny the promotion because of Aulicino's race? To make out a failure to promote case under Title VII, the plaintiff has to show that he was qualified for the position and that the employer intended to discriminate. The Court of Appeals says that Mr. John's racially-discriminatory comments to Aulicino in the workplace constitute direct evidence of discriminatory intent: "John's comment to Aulicino that Aulicino 'deserved' to be called 'a white mother fuck' by a DHS client, and his comment to Aulicino that 'white people are lazy.' We think a reasonable jury could infer from these comments ... that John's hostility toward Aulicino was race-based, and that that hostility played a role in the denial of the promotion." (Mr. John did tell someone else that "he wouldn't hire that white fuck," but the court finds this might be inadmissible hearsay).

The Court of Appeals is not quite sending the racial harassment case to the jury, however. Under this ruling, the district court has to reconsider its dismissal of the racial harassment claim. Most racial harassment cases involve racist whites harassing blacks. This case is the opposite, but the legal standard is the same. Summarizing the standard, the Second Circuit notes that case law considers misconduct that is "both frequent and severe, for example, when a supervisor utters 'blatant racial epithets on a regular if not constant basis' and behaves in physically threatening manner." But, the Court of Appeals, says, the work environment may be illegal "if the conduct there is either so severe or so pervasive as to alter the working conditions of a reasonable employee."

The fact that Mr. John made his racial comments from December 2001 through September 2002 and another supervisor, Mr. Johnson, made anti-white comments from January through July 2005 is enough to show a severe or pervasive hostile work environment. The district court dismissed the case without viewing the evidence in a light most favorable to Aulicino. Not only did the district court outright overlook one of Mr. John's racist statements, but the court reviewed all the racial comments over a five year period (which dilutes the case) rather than set aside the two year period when no racial comments were made by any supervisors. As the Court of Appeals frames it:

The calculation ... of the relevant time period in which the alleged derogatory comments were made appears to have been analyzed in the light least, rather than most, favorable to the plaintiff. The magistrate judge viewed the comments as having been made "over a five-year time period," even though the first comment it mentions dates from December 16, 2001 and the last was in July 2005, less than four years later. In addition, the "cumulative" assessment contained in the [district court opinion] includes a 26-month period between the last comment by John and the first comment by Singleton. We think that, in order to take the facts of this case in the light most favorable to Aulicino, the court should have discounted from its analysis, if not altogether disregarded, the intervening period between comments by one supervisor and comments by another. In our view, a "realistic" picture of the hostile workplace alleged by Aulicino is not obtained by focusing on a two-year stretch of time in which he fails to allege acts of hostility, and using that time to dilute the strength of his claims based on two discrete periods of more intense harassment.

Got that? In assessing the frequency of the racial comments, courts normally calculate the number of comments in light of the relevant time period. Here, Aulicino has a five-year period in which he endured racial comments. That's a long time, for which many racial comments are necessary in order to make out a hostile work environment claim. If you take out the 26 months without racial comments and bear in mind that Aulicino had two managers making anti-white comments during discrete time periods, then the jury can find in Aulicono's favor. There is no mathematically precise test in deciding these cases, the Court of Appeals reminds us. The district court has to reconsider the motion for summary judgment in light of the Second Circuit's analysis.

Public defender cannot pursue civil rights claim against state judges

The State of New York assigns lawyers to represent indigent clients. These public defenders are often called 18-b lawyers, based on a provision of the law which provides for this service. These lawyers are not paid a lot of money for this work, and the low pay has been a sticking point for years. One of these lawyers did something about: he filed a lawsuit over the compensation.

The case is Bliven v. Hunt, decided on August 28. Bliven argued that he was denied appropriate compensation by judicial officials in retaliation for aggressively doing his job. In particular, he filed what he called "disfavored motions" in approximately 15 child protective and custody cases in demanding to review entire case files. His payment vouchers were reduced without any explanation, and he was told by at least two defendants that the real reason for the pay reductions was his motion practice in the childrens' rights cases. He claimed that the judges threatened to file a grievance against him because he continued to complain about the low pay, and that he was forced to withdraw from the Rule 18-b panel, costing him income.

In any other context, Bliven would probably have a case. The government cannot deny your benefits in this manner. This case is different. The general rule is that you can't sue judges for their actions taken in the course of their judicial capacity. There are reasons for this rule, including the possibility that disgruntled litigants will go after the judges. Even malicious judicial acts are immune from suit. That rule, among others, doomed the case. The Court of Appeals (Kearse, Sack and Katzmann) affirms the district court's order dismissing the case.


How do we know that a judge is immune from suit? The judge is immune if the challenged decision is case-related. In Mitchell v. Fishbein, 377 F.3d 157 (2d Cir. 2004), the defendants were not immune from suit because the lawsuit concerned their role on a committee in which they named lawyers to the 18-b panel. As the committee did not determine which lawyers would work on particular cases, the committee was being sued over its administrative, not judicial, role.


This case is not Mitchell. Judge Kearse writes, "In contrast to the Committee functions in Mitchell, the determination by a judge as to whether a given fee request by an 18-b Panel member is reasonable is clearly case-related." For example, under the compensation rules, the judge decides whether the lawyer should be compensated for work "reasonably" expended out-of-court, i.e., in the office. This is a case-specific inquiry, and therefore Bliven is suing judges in their capacity as judges, not administrators. By way of comparison, the Second Circuit notes that laws in which the prevailing party in a lawsuit can recover full attorneys' fees (particularly in civil rights cases) also require the judges to consider case-specific factors, such as whether the lawyer reasonably spent X number of hours on the case.

Municpal liability: it ain't easy, but it's not impossible

Civil rights lawsuits brought under Section 1983 usually proceed against individual defendants. You can sue the municipality, but under the rules it's hard to hold the county or a town responsible for the unlawful acts of its employees. The courts have set up rules which almost discourage plaintiffs from proving municipal liability. But the courts do surprise us with a little municipal liability from time to time.

The case is Okin v. Cornwall-on-Hudson, decided on August 18. I wrote about Okin here for its holding on the rights of domestic violence victims who sue the police. I also wrote about Okin here for its clarification of the rules governing qualified immunity. The Okin ruling is chock full of interesting holdings on Section 1983 liability. Here are some more.

If you want to hold a municipality liable for a civil rights violation under Section 1983, you have to show the town or village had a custom or practice which caused the plaintiff harm. We call that Monell liability, named after a Supreme Court ruling from 1978. The Okin ruling will be remembered mostly for its holding that the police may be liable for its explicit or implicit endorsement of private violence against the plaintiff. This represents an exception to the general rule that the police are not required protect individuals from private violence. Tucked into the opinion, however, are two interesting holdings on municipal liability, however.

First, the Court of Appeals finds that a jury may agree that the municipality had a custom whereby it acquiesced in unconstitutional conduct by its officers. As Judge Pooler points out, "the record shows more than a dozen contacts between Okin and the Village, that involved a number of officers, including high-ranking officials ..., and that recurrently concerned complaints of domestic violence. These incidents suggest a consistent pattern of failing to adequately respond to Okin's complaints, to implement the New York mandatory arrest statute, to interview the alleged abuser, or to file domestic incident reports, a pattern which may have encouraged further violence." What strikes me about this holding is the Court of Appeals is finding a municipal custom as proven through its treatment of one person, as opposed a municipal custom as proven through its repeated acts or omissions as to many people. Few cases go this far, but Okin does.

Second, the Court of Appeals finds potential municipal liability based on the "failure to train" theory. The failure to adequately train public employees may impose liability against the town or village (or city) if the inadequate training "reflects deliberate indifference to ... constitutional rights." Okin meets that test. The Second Circuit finds that the municipality had lousy training in responding to domestic violence episodes. Some of the officers could not testify with specificity any details about their training. More importantly, "the repeated failure of high-ranking officers to properly respond to domestic violence complaints, when those same officers were responsible for teaching subordinates how to respond to domestic violence, suggests a fundamental flaw in the training program -- placing training responsibility in the hands of those who may themselves not understand the problem or the appropriate response." The Second Circuit seems to be breaking some ground here, as the court does not cite any cases for this holding, probably because the facts are so unusual. Sometimes bad facts make good law ... for plaintiffs.