Are you a "state court loser"?

There are ways to stop people from re-litigating their cases in federal court after they lose in state court. One way is the Rooker-Feldman doctrine, an esoteric rule that says federal courts cannot independently review state court judgments. Rooker-Feldman only applies when you're a "state court loser," which is why it doesn't apply in this case.

The case is Green v. Mattingly, decided on October 21. "State court loser" is language deriving from Second Circuit case law. It means what it says. If you lost in state court, under Rooker-Feldman, there is no federal court relief. Since state courts are able to resolve constitutional issues, it is no argument that federal courts are more qualified to do so.

In Green, the City of New York took plaintiff's child away on suspicion of child neglect. Green's husband slapped her child, and the Administration for Children's Services moved against her in Family Court. Green claimed that ACS authorities lied about her, but Family Court granted an order temporarily removing the child. But on further consideration, Family Court changed its mind because there was no imminent risk to the child's life or health. Green accepted an "adjournment in contemplation of dismissal," which means the charges are formally dropped if she followed certain conditions for a year.

Can Green now sue the child protective authorities under the Civil Rights Act in federal court? Sounds like a great case; she lost her child for four days allegedly because of governmental misconduct. Except for the Rooker-Feldman doctrine. The district court said Rooker-Feldman means Green can't sue in federal court because the state court did initially rule against her, and there was no final adjudication of the case in that the case was conditionally dismissed. This ruling was incorrect.

As the Court of Appeals (Miner, Cabranes and Rakoff, D.J.) notes, "the Rooker-Feldman doctrine applies only to federal actions brought by 'state-court losers,' and plaintiff is not a state-court loser." There was no final order of disposition removing Green's child, and she also reversed the temporary order removing her child. "She did not 'lose' in state court." Moreover, Green is not asking federal court to sit in judgment of a state court ruling. Rather, "[t]he only conceivable 'judgment' against plaintiff -- the temporary removal of her child -- has already been undone." Put another way, Rooker-Feldman would only apply if the Family Court ruled against Green for good and she brought a civil rights case in federal court to get her child back. As that's not the case here, Green's case may proceed in federal court.

Pretext and the shifting explanation

In order to win an employment discrimination case, you have to show the employer's stated reason for your termination or demotion was a pretext (or a cover-up) for discrimination. Pretext is sometimes enough to support an inference of discrimination. As the Supreme Court observed in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), "the factfinder's disbelief of the reasons put forward by defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination."

There are many ways to prove pretext. One method is by showing that the employer's stated reason for plaintiff's termination shifted over time. The logic of citing the shifting explanation seems obvious. If the first justification was truly the real reason, the employer would not have to change that justification after the lawsuit was filed. Evidence of shifting explanations can go a long way toward winning the case. In EEOC v. Ethan Allen, 44 F.3d 116 (2d Cir. 1994), the Second Circuit held that the plaintiff could win his age discrimination case solely on the basis of the employer's shifting reasons for plaintiff's termination.

For plaintiffs, there are limits to the shifting explanation theory of pretext. In Liebowitz v. Cornell University, decided on October 23, the Court of Appeals did reverse summary judgment on the plaintiff's gender and age discrimination claim on the basis of much pretext for Cornell's refusal to renew Liebowitz's contract as a professor at the School of Industrial Relations. My write-up on the Liebowitz ruling is here. But in a footnote, the Second Circuit reigns in the shifting explanations strategy in ruling that it only works when the employer's reasons are dramatically different over time. Footnote 6 reads:

Plaintiff argues that “Defendants’ proffered reasons for terminating Plaintiff’s employment have changed over time” and “[s]uch changes support the inference that Defendants’ explanations are pretextual.” (Plaintiff’s Brief on Appeal, at 57.) Specifically, plaintiff submits that defendants have argued, at various stages in the litigation, that they did not renew plaintiff’s contract because (1) it was a “good investment,” (2) budgetary exigencies required it, and (3) she asked for more travel compensation than they were willing to provide. Although these justifications are not identical, all relate to the alleged financial burden of renewing plaintiff’s contract; in contrast, in the cases where we have found that variations in the employers’ professed reasons gave rise to an inference of pretext, those reasons were radically different. See, e.g., Carlton v. Mystic Transportation, 202 F.3d 129, 137 (2d Cir. 2000) (employer first cited declining profit as the motivation for claimant’s dismissal, then in litigation relied upon claimant’s poor job performance); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (employer stated during agency investigation that employee’s discharge was due to decrease of duties assigned to his position, but then stated at trial that employee’s qualifications were found lacking). Thus, pretext is not inferable from a shifting of rationales here.

Court of Appeals says Cornell may have discriminated against female, older professor

The School of Industrial Relations at Cornell University may have discriminated against a professor on the basis of age and gender, the Second Circuit has ruled in a decision which fleshes out the legal framework for resolving these cases and remands this case for trial.

The case is Liebowitz v. Cornell University, issued on October 23. Margaret Liebowitz was a non-tenured Senior Extension Associate, teaching in the program's Extension facilities in New York City (the program is based in Ithaca). In 2002, citing budgetary exigencies, the school did not renew Liebowitz's contract, though it allowed her to teach in 2002-03. She elected to retire in December 2002. When Cornell decided to terminate Liebowitz's employment, the parties were in the middle of a dispute over the reimbursement of her travel expenses stemming from her commute to Ithaca.

It's been a while since the Court of Appeals has resolved a disparate treatment discrimination claim in a published opinion. It's worth paying attention to these cases which focus on how much evidence is enough to make out a prima facie case and whether the plaintiff has enough evidence to show the defendant's reason for terminating the plaintiff is pretext for discrimination. With one exception, the Court does not chart new ground here, but Cornell's vigorous defense raises a cornucopia of legal issues.

Liebowitz has a prima facie case of age and gender discrimination. The Second Circuit (Kearse, Katzmann and Bianco) follows the lead of federal courts around the country in finding that the failure to renew an employment contract constitutes an "adverse employment action." Noting that ADEA and Title VII prohibit the discriminatory failure-to-hire based on age or gender, the Court says, "under defendants’ reasoning, an employee could bring a discrimination lawsuit if an employer refused to hire her based on her age and/or gender, but not if the same employer failed to renew an employment contract for the same discriminatory reasons. We decline to adopt that flawed legal analysis, which is inconsistent with prior decisions of the Supreme Court and this Court."

Rounding out the prima facie test, Liebowitz also makes out an inference of discrimination because "(1) during the relevant time period, in addition to plaintiff, defendants laid off five other employees, all of whom were older than the age of fifty; (2) defendants reassigned teaching duties once performed by plaintiff to at least three male instructors; and (3) defendants did not consider plaintiff for vacant positions that arose in 2002, prior to plaintiff’s departure, in the Long Island and New York City offices, and attempted to fill one such position in the New York City office with a younger, male employee."
The Second Circuit emphasizes that "plaintiff is not required to establish that she was replaced by a single male and/or younger employee in order to carry her [prima facie] burden." Moreover, "the fact that the ILR School also hired females as well as males during the 'budgetary crisis' does not preclude an inference of gender discrimination."

A prima facie case is not going to do it, however. You also have to show the employer's stated reason for not renewing the contract is pretext for discrimination. Liebowitz has enough evidence on this issue for a trial. Cornell cites "anticipated budget cuts and the expense of maintaining her travel allowance." Cornell may be masking its discriminatory intent, the Court of Appeals says, because: (1) the budgetary concerns in 2002 had diminished over 2002-03 and by 2003 the school was in good financial shape; (2) the school's Extension Division had enough money to hire 12 new employees during the relevant time period; and (3) although the school laid off six employees, these employees were all older women. In addition, (4) although positions became vacant after Cornell decided not to renew her contract, the school did not consider her for any of them, and the Long Island branch wanted Liebowitz on the faculty and someone was actually fired for making Liebowitz an offer; (5) a younger male was hired to fill a vacant teaching position in NYC in 2002 and (6) Liebowitz was not considered for a position that opened up in 2003.

Cornell further said that it did not make room for Liebowitz because of personality conflicts. This is a common justification for adverse personnel decisions. The jury may reject that defense because there is evidence that the personality conflicts in the New York City office dissipated by 2002 and "similar past conflicts did not deter defendants from planning to place a male employee in that office."

Finally, Cornell said it let Liebowitz go because of her large travel reimbursement (New York City to Ithaca). This may also be pretextual, the Court says. "[I]t was a common practice amongst male Extension Division faculty members to negotiate for compensation as she did, and that none of these employees’ contracts were terminated or not renewed. Plaintiff submits that, if her requests were so onerous that granting them made her continued employment unsustainable, defendants were free to simply deny them."

Toll bridge discount for local residents might be unconstitutional

In upstate New York, near Niagara Falls, motorists crossing the Grand Island Bridge have to pay a toll. Everyone pays 75 cents, unless you live on Grand Island. People who live on Grand Island pay as little as nine cents per trip. Is this legal? Maybe not.

The case is Selevan v. New York State Thruway Authority, decided on October 15. In a ruling that took more than a year for the Second Circuit to resolve, the Court (Cabranes, Pooler and Katzmann) finds that this lawsuit challenging the toll differential may have merit under various constitutional provisions, including some provisions which many lawyers have not thought about since law school.

First, constitutional right to travel, which stems from the Equal Protection Clause. There is such a thing as the right to travel, and the Court of Appeals compares it with "the right to free movement," which includes the right to travel within the state as well across state lines. While the toll differential has not deterred anyone from driving, it does pose a minor restriction for people who do not enjoy the discount. User fees should be uniform under Supreme Court case law, unless the state has a reason to charge otherwise. It's too early to dismiss this case. But if the district court finds that the toll discount for some residents is merely a "minor restriction on travel" that does not amount to the denial of a fundamental right, then the state wins the case. The state loses if the toll difference is "excessive in relation to the benefits conferred."

Another constitutional provision invoked here is the "dormant" Commerce Clause, which states that "Congress shall have Power ... to regulate interstate commerce with foreign Nations and among the several States." The clause prevents states from unduly burdening interstate commerce or impeding free trade in the national marketplace. But states have some authority to regulate commerce. One exception is that the state can act as a "market participant," which means the state can favor its residents if it promotes commerce like a private entity would, i.e., if the state sells cement, it can favor its citizens as if it were a private business. That's the exception raised by the state in defending this lawsuit. The Court of Appeals, however, says the opposite may be true since the law creating the Thruway Authority says this entity "shall be regarded as performing a governmental function" in executing its responsibilities. Building and maintaining roads is a core government function, the Second Circuit says, and at this early stage in the case, it's too early to let the state off the hook for the toll differential.

Since the market participant exception may not apply, the Court determines whether the toll differential violates the dormant Commerce Clause. It might. Motorists traveling around the country who have to pay the toll while crossing the bridge may suffer an injury, albeit a relatively small one since the toll is not exactly like the seven dollar extortion that we pay in crossing the George Washington Bridge. The claim is remanded to the district court to determine if the Thruway Authority imposes on drivers a burden that is not commensurate with the benefits it confers. If you have read this far, you may be interested to know that the Court of Appeals is applying a new rule here, based on the Supreme Court's ruling in Northwest Airlines v. County of Kent, 510 U.S. 355 (1994). And, if you have read this far, you deserve a medal. No one likes reading about the dormant Commerce Clause.

Over-eager juror excluded from trial after honoring Obama

When a black juror showed up bright-eyed and bushy-tailed for a civil trial at the U.S. Courthouse in White Plains, she told the judge in voir dire that she was present because "President Obama said everybody should serve." The defense lawyer exercised his peremptory challenge on this and another black juror. Plaintiff loses the Batson challenge.

The case is Jaquith v. South Orangetown Central School District, decided on October 21. When counsel tries to keep blacks off the jury, the other side may raise a Batson challenge. Batson is a Supreme Court case which prohibits racial discrimination in jury selection. To defend his choice, the lawyer has to articulate a race-neutral reason for the challenge. The trial judge then has to decide if the explanation is credible.

Two blacks were excused. The first juror said his wife was disabled, and the plaintiff in this case said the school district failed to accommodate her disability. This is not a controversial call. More interesting is the second juror, who said President Obama "said everybody should serve." Obama had just been inaugurated. The school district's lawyer offered this explanation for excusing the second juror:

[S]he “seemed a little bit over-eager to try to do good as a preconceived notion of what good might be.” Counsel further indicated that his concern had “nothing to do with race,” but rather had “more to do with political affiliation and ideas that a person – certain political persuasion may have with respect to a case.”

I am not sure what exactly counsel was trying to say, but it seems the juror was too eager to serve and that she may not have had the right political persuasion to sit on the case. Counsel's reference to the "preconceived notion of what good might be" is lost on me completely. On appeal, the Second Circuit (Livingston, Feinberg and Koeltl) says "the district court indicated its disagreement with counsel’s reasoning as to the second juror," but the trial court also "concluded that the asserted reasons for the peremptory strikes were not a pretext for discrimination." In making these decisions at trial, the district court receives the benefit of the doubt on appeal. Although the over-eager black juror was sent home after honoring the first black President's exhortation to serve, the Court of Appeals finds no clear error in the juror's exclusion, and the plaintiff (who lost at trial) is not entitled to a new trial.

Dual constitutional standards under 1996 habeas revisions

If you're convicted of a crime in state court, you can challenge the constitutionality of your conviction in federal court through a habeas corpus petition. They call habeas actions "The Great Writ," but Congress made habeas petitions harder to win in 1996. Under the revision, even if a federal judge thinks the state court conviction was unconstitutional, the defendant can still lose if the state appeals courts did not unreasonably apply settled constitutional standards.

The case is Dunlap v. Burge, decided on September 28. I recall that when Congress revised the habeas law in 1996, a few Senators said that they did not like federal courts second-guessing state-court constitutional judgments. The revisions prevent federal courts from granting habeas petitions unless the state appellate courts reached a decision that "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." Even if the state court's constitutional analysis is incorrect, the federal court cannot second-guess that analysis unless the state court's application of Supreme Court precedent is "unreasonable."

Dunlap was convicted of robbing a taxi driver after the driver and another passenger identified Dunlap in a photo identification procedure. We call this a photo array. Both witnesses were shown two sets of photos. Each set included Dunlap's picture. While other evidence also pointed to Dunlap's guilt, including the otherwise unexplainable presence of Dunlap's apartment key in the cab, Dunlap had a good habeas argument: the photo arrays violated Simmons v. United States, 390 U.S. 377 (1968), where the Supreme Court said that impermissibly suggestive photo arrays are unconstitutional. In Simmons, the defendant and a decoy were both featured in separate photo arrays. This increases the likelihood that the defendant will be singled out as the perpetrator.

The federal court in White Plains said that Dunlap's photo array violated the principle outlined in Simmons. The Second Circuit says the federal judge overlooked his obligation to consider whether the state appellate court had unreasonably applied Simmons in upholding the conviction. As the Second Circuit notes, "It is not sufficient for a habeas petitioner to convince the district court that the state court applied a federal legal standard incorrectly; instead the petitioner must demonstrate that the legal standard was applied in a way that was objectively unreasonable." The federal court's failure to apply this standard means the state court's judgment is upheld, particularly since the Court of Appeals finds that the state court's ruling was not objectively unreasonable, no matter how an experienced federal judge interprets the constitution in the same case. (The state appellate court was sold on the argument that the dual photos of Dunlap featured him in different poses, which decreased the likelihood of suggestive identification).

What an ironic legal standard set up by Congress in changing the habeas rules. I get the sense from reading these opinions that the Court of Appeals is aware of the irony: that there are two legitimate interpretations of the same Constitution, the federal standard and the state standard. An inmate stays in jail even if a federal court thinks his conviction was unconstitutional so long as the state interpretation of the constitutional standard is not so far off base as to be unreasonable. Dual constitutional standards, deferring to state court interpretations of the same document. Or, in certain circumstances, two U.S. Constitutions, one for federal court and one for state court.

Location, bricks and mortar

A complex set of laws and regulations govern the rights of disabled public school students. Under the Individuals With Disabilities In Education Act (IDEA), a committee on special education (CSE) at the school district convenes to determine the student's individualized educational program, or IEP. If the parents don't like the IEP and the district will not reimburse them for alternative, private education, the parents can appeal to state educational officials and, as a last resort, federal court.

The case is T.Y. v. New York City Department of Education, decided on October 9. T.Y. is autistic and needs special educational services. The CSE decided to place the student at a public school in District 75, "a group of schools that specialize in providing education for children with disabilities." The CSE did not name the school until a month later. Dad went to the school and deemed it unacceptable. The CSE named another school, and that was also unacceptable. The parents enrolled T.Y in a private school and asked the city to reimburse the tuition. The city said no, the parents appealed unsuccessfully to state educational authorities, and then filed suit in federal court.

The argument is that the IDEA requires the city to identify the particular school in the IEP. The parents base this on the language of the regulations, which says "the parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to ... [t]he identification, evaluation, and educational placement of the child." The law also says the IEP includes "the anticipated frequency, location, and duration of those services." The Second Circuit says these are compelling arguments ... but only at first glace. On second glance, the parents lose.

The parents lose because "educational placement" under Second Circuit case law "refers only to the general type of educational program in which the child is placed." In other words, this phrase refers to classes and services, not the "bricks and mortar" of the school. What about "location" under the IDEA? That won't cut it, either. U.S. Department of Education commentaries in 1999 rejected this interpretation, and so did the U.S. Senate in its 1977 commentary on the law. "Location" means the general environment of the overall program, not the specific school location. The distict does not violate the IDEA in failing to provide this information. Since the parents had the opportunity to participate in the process and sent their son to a private school without giving the city an opportunity to offer another school, they do not have a claim for reimbursement under the IDEA.

You need to dress like a lawyer in the courtroom

I was in court once and some guy showed up in street clothes. It was OK, though, because the judge needed him on a moment's notice and the lawyer did not have a suit in his office that day. Normally, you have to dress up for court. Hey, it's court!

The case is Bank v. Katz (E.D.N.Y. Sept. 24, 2009). Todd Bank is an attorney who appeared in Civil Court in Queens, N.Y. While representing himself in a legal dispute, he asked the judge to recognize his First Amendment right to wear an Operation Desert Storm baseball hat. He was also wearing a button-down shirt, blue jeans, socks and shoes. Of course, the state court judge said no, hence this lawsuit.

First Amendment cases involving speech on public property are won or lost depending on how the property is categorized. In a public forum (such as a park or the sidewalk), speech rights are at their zenith. Courtrooms are not public forums, Judge Garaufis reminds us. Citing Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2005), he writes that "[t]he function of a courtroom is 'to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum.'" A federal court in Pennsylvania ruled in 2004 that "it is generally accepted etiquette to remove an every-day hat when entering the courtroom."

The state judge who told Bank to remove his hat and dress appropriately acted reasonably and without regard to Bank's viewpoints. Noting that viewpoint discrimination is illegal even in non-public forums, Judge Garaufis starts to have fun with the case. He writes, "Plaintiff does not allege, for example, that a Queens judge prohibited only Yankees hats from her courtroom, or that hats with pro-war messages were permitted while anti-war hats were not." As it is implausible that Bank has a legitimate First Amendment claim, his case is dismissed.

Strong pretext will get you a discrimination trial

It's fair to say the Second Circuit is a pretext-plus court when it comes to employment discrimination. This means that if the plaintiff belongs to a protected class and the employer offers a false reason for her termination or demotion, she can't win the case without showing that the false reason is pretext for discrimination. A bad faith excuse for the adverse job action is usually not enough. There has to be some evidence pointing specifically to racial or gender discrimination. That's the rule in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997). Fisher remains good law even after the Supreme Court appeared to reject "pretext plus" in Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000). The Second Circuit said so in James v. New York Racing Association, 233 F.3d 139 (2d Cir. 2000).

Pretext-plus is not always the rule in the Second Circuit. Every now and then, the Court of Appeals vacates summary judgment in an employment discrimination case solely on pretext. The Court does not emphasize this deviation; it will just quietly issue a ruling as if Fisher v. Vassar never happened. This all brings us to DeMarco v. Stony Brook Clinical Practice Management Plan, a summary order issued on October 8.

DeMarco applied for a position at Stony Brook and, according to the opinion, she falsified her employment history. The trial court ruled that this meant she was not qualified for the position. The Court of Appeals says the falsification does not mean she is not qualified; she is qualified if she has the necessary skills for the position. The falsification is not irrelevant, however. It can win the case for Stony Brook if she was denied the position for that reason.

DeMarco claimed she was denied the job because of her pregnancy and also in retaliation for having brought a prior discrimination case against a different employer. The Second Circuit's brief opinion does not suggest that management cited her pregnancy or prior lawsuit or any other smoking gun (such as a sexist comment during the job interview) that would expressly support a discrimination claim. (That is the kind of evidence that would satisfy the "pretext plus" standard under Fisher v. Vassar). Instead, the Court of Appeals sends the case back for trial because the jury can find that management really didn't care about DeMarco's alleged dishonesty. Here is how the Court of Appeals puts it:

Drawing all reasonable inferences in DeMarco’s favor, the evidence could support a jury’s conclusion that CPMP decided not to hire her either because of her pregnancy or because of her lawsuit. Specifically, this conclusion could be based on the evidence (1) that Research Foundation’s Assistant Vice President for Human Resources suggested that CPMP could employ DeMarco as a data analyst briefly, despite knowing of her alleged dishonesty; (2) that Darren Mikalsen, one of the supervisors for the data analyst position, upon learning of DeMarco’s prior employment, told DeMarco that it would not be a problem; and (3) that CPMP back-dated documents indicating that DeMarco had poor references. Thus, summary judgment was not appropriate.

So there is nothing specifically pointing to pregnancy discrimination or retaliation for filing a past lawsuit. What we do have is three examples of pretext, that management was willing to overlook the dishonesty. Not pretext-plus, but a strong showing of pretext. The Court of Appeals does this from time to time. A strong showing of pretext will get you a trial on your discrimination claim.

Hospital denies "a link to the hearing world" under Rehabilitation Act

The Rehabilitation Act and its younger counterpart, the Americans With Disabilities Act, have nooks and crannies which may not be apparent to the casual observer. The Second Circuit has highlighted those nooks and crannies in an interesting case against Staten Island University Hospital which strengthens the protections for the hard-of-hearing. It also strengthens protections for family members of these patients.

The case is Loeffler v. Staten Island University Hospital, decided on October 6. The Loeffler family was at the hospital when the father underwent surgery. The parents are hearing-impaired, and the children, Bobby and Kristy, were in the hospital room following the surgery and wanted an interpreter so they could communicate with their parents. The hospital concedes it had an obligation to provide an interpreter, and the family testified that hospital staff blew off their requests for an interpreter, requiring the father's young son to interpret for the parents. Bobby's assignment as interpreter was quite stressful as he did not understand some of the terms, and he blamed himself when his father had a post-operation stroke.

To win a case like this under the Rehabilitation Act, the plaintiff has to show the hospital was deliberately indifferent to the family's right to proper interpretation services. The Court of Appeals (Jacobs, Wesley and Sand) agrees that the jury can find for the parents. While the Second Circuit has never clarified what constitutes deliberate indifference in this context, it is persuaded by the Supreme Court's ruling in an educational discrimination case, Gebser v. Lago Vista School District, 524 U.S. 274 (1998) which says deliberate indifference requires actual knowledge of the problem and the failure to adequately respond. Also in another context, the Second Circuit has said deliberate indifference "must be a deliberate choice ... rather than negligence or bureaucratic inaction." As the family repeatedly requested an interpreter and the hospital provided none, the jury can find in the parents' favor and the case is sent back to the district court for trial.

The Second Circuit also finds that the family has a case under the New York City Human Rights Law, which state courts have interpreted more broadly than the federal civil rights laws. In other words, on the same set of facts, you can win under the city law but not state-wide law or even federal law. The leading case for this proposition is Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dept. 2009). As the city law allows for "associational discrimination" claims, the parents and children might be able to prevail under the city law; the district court will have to deal with that issue on remand.

But there's more. Over Judge Jacobs' dissent, Judges Wesley and Sand find that the Rehabilitation Act also allow the children, Bobby and Kristy, to win under an "associational discrimination" theory of liability. They were compelled to provide sign language services to their parents and also had to miss school and endure involuntary exposure to their father's suffering as a result of this unpleasant assignment resulting from the hospital's deliberate indifference. In fact, 13-year-old Bobby had to watch his father suffer a stroke and tell his mother about it, an unpleasant experience which caused Bobby significant pain and suffering. Since the children have an independent injury from that suffered by their parents, they can sue the hospital under "associational discrimination." This holding by the Court of Appeals is innovative as shown by the few decisions from around the country which have recognized the associational discrimination theory under the Rehabilitation Act. In any event, even under traditional liability principles, the children can still win since the hospital denied them appropriate interpreter services and the children's inadequate interpretation skills denied the family a full understanding of their father's progress (or lack thereof).

This is a court with few dissenting opinions, but Chief Judge Jacobs dissents from the associational discrimination holding, identifying a slippery-slope that can expose hospitals to liability in less dramatic circumstances. Judge Wesley responds by suggesting that the Chief Judge "seriously misrepresents the children's claims" and that, in fact, "two children were required to provide a service to their parents that federal law says is guaranteed to any hearing impaired patient in a hospital." Accordingly, Judge Wesley writes, "If our dissenting brother thinks that what Bobby and Kristy were forced to do is a 'complimentary service' [of the hospital] ... then he is sadly mistaken. ... It is not the dawn of never-ending liability for the Hospital, it is what Congress required -- a link to the hearing world."

No ADA claim without an available position for disabled employee

The Court of Appeals publishes relatively few cases interpreting the reasonable accommodation provision of the Americans With Disabilities Act, which allows disabled employees to stay on the job if the employee can perform the essential functions of the position with a reasonable accommodation that does not unduly burden the employer. This time around, the Second Circuit finds that a disabled worker cannot sue her former employer for disability discrimination because there was no available position.

The case is McBride v. BIC Consumer Products, decided on October 5. McBride worked for BIC, which manufactures pens and lighters, requiring the use of chemicals in the factory. After McBride developed a reaction to the chemicals, she took time off from work and tried to keep her job even though her doctor advised staying away from the chemicals. For reasons not explained in the opinion, McBride rejected management's proposed accommodation: a respirator that would deliver breathable air. She did not propose an alternative accommodation, and she did not have the education or experience to take on the other available positions at BIC. Summary judgment is affirmed, for three reasons:

First, McBride cannot show that any accommodation was available that would have allowed her to continue working around chemicals, and she rejected an accommodation that management proposed. Second, she has not identified any suitable position in the workplace for which she was objectively qualified. As the Second Circuit reminds us (drawing from the usual sources, including the ADA itself, EEOC regulations and case law), "the identified position is one for which she was qualified. An employee is qualified for a position only if she can perform its essential functions. ... [T]o be qualified for a position, a plaintiff must in addition 'satisfy the requisite skill, experience, education and other job-related requirements of the employment position." And, citing cases from around the circuits, the Court of Appeals holds that the desired position must not amount to an unwarranted promotion. Unfortunately for McBride, all the available positions required educational or workplace experience that she did not have.

Finally, the Court of Appeals (Walker, Livingston and Kaplan) resolves an issue that has lingered for some time now. Whether the employer's failure to take seriously the interactive process may give rise to liability under the ADA. The interactive process takes place when management and the employee try to work out an accommodation through give-and-take. What if the employer drops the ball in this regard? The other circuits have already held that management's failure to engage in the interactive process is not enough to win the case. There still has to be evidence of an available position for the employee. If there is no available position or accommodation, then the employer's failure to engage in the interactive process is harmless error. While, the Court of Appeals notes, the employer is increasing the chances of liability if it fails to engage in a sufficient interactive process, in order to win the case, the plaintiff must still show that an accommodation was possible.

Police cannot run down fleeing suspect with police car

The police can use some force, if necessary, to arrest someone. This is why some excessive force cases against the police don't make it to trial. They get dismissed because the judge decides the force was reasonable under the circumstances. The question today is whether the police can hit a fleeing suspect with a police car in order to seize him.

The case is Hartman v. County of Nassau, decided on October 1. Hartman was running away from the police. He was wanted for a misdemeanor charge and he did not have a weapon. Although the court ruling does not provide factual detail, it appears that the police officer tried to catch Hartman with his police car. Here is the issue, as Nassau County's lawyer frames it:

In this case, defendants contend that a reasonable officer would not have known, based on general Fourth Amendment principles and prior case law, that Officer Snelders could not terminate Hartman’s on-foot escape by hitting him with a car.

The Court of Appeals says that Hartman has enough evidence to win the case if the jury believes his version of events: "at the time of Officer Snelders’s allegedly illegal conduct it was not reasonable to believe that Hartman posed a danger to the officers or the public. At that time, Hartman was running away from the officers on foot, he was wanted only on misdemeanor charges, and there was no evidence that Hartman then possessed a weapon."

The summary order in this case does not provide detail that would explain exactly what happened. The district court opinion is found at 2008 WL 1923127 (EDNY April 28, 2008). Summarizing the evidence, the district court says that Hartman led the police on a car chase and then he got out of the car and tried to run away. The police wanted Hartman on a domestic violence charge, and they regarded him as dangerous, though there was no evidence that he was carrying a weapon and he denies threatening the police. This must have been quite a scene in suburban Nassau County. Here is what happened next:

After a brief pursuit, plaintiff stopped his vehicle on Allan Avenue, in a residential neighborhood, exited the car, and walked back toward the driver's side of the police vehicle. Again, plaintiff allegedly threatened the officers verbally before returning to his vehicle. Rather than unholstering his weapon, Officer Snelders drove the police vehicle slowly toward plaintiff as plaintiff moved towards the front of his vehicle. The officer contends that when he saw plaintiff place his hand in his waistband and then remove it, the officer “gunned his engine and cut the wheel to the right,” striking plaintiff with the right front side of the police car. The officer conceded that it was his intention to hit plaintiff with the car. After the officers' vehicle struck plaintiff, running over his legs, the police vehicle came to rest on the front lawn of one of the homes on Allan Avenue.