No harm, no foul, no First Amendment case

The First Amendment makes it illegal for the government to retaliate against you for engaging in free speech. This issue usually arises in the context of public employees who blow the whistle on government misconduct. This time around it's different. It concerns a guy who sued the Town of Ridgefield, Connecticut.

The case is Tuccio v. Marconi, decided on December 18. Tuccio is a developer. He filed a lawsuit against a Town police officer. At the same time, he was trying to get a permit to use the municipal sewer system for his project. When the Board denied his request for the permit, he brought a retaliation suit in federal court, claiming the Town held the police case against him. Then, with the retaliation suit pending, Tuccio asked for a meeting with the Town's director of planning and zoning. The Town's lawyer objected to this and said that Tuccio should only communicate with her in writing. According to Tuccio, other Town officials also declined to meet with him.

So does Tuccio have a case? No. Well, yes and no. The case went to trial, and Tuccio won (winning $1 in damages). Then the trial court vacated the jury's verdict under Rule 50, "finding that plaintiff's evidence did not reasonably support a verdict in his favor." The Court of Appeals (Leval, Cabranes and Livingston) affirms, and Tuccio experiences the ultimate disappointment. He wins at trial but in the end he gets nothing.

Under Second Circuit authority, "our constitutional doctrine prohibits government officials from punitive retaliation against persons who exercise their First Amendment right to sue the government." That's the rule in Dougherty v. Town of N. Hempstead Board of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002). If Town officials would not meet with Tuccio in retaliation for his lawsuits, why doesn't he have a case? Because there are limits to retaliation cases. The meetings which Tuccio wanted with Town officials were not that important. At the time of the proposed meetings, Tuccio had no business with the Town, and while he wanted a "sit down" with one of them, the record is devoid of any reason for that meeting. He was neither denied access to any public meetings nor any business opportunities. The meeting denials were trivial.

Instead, the Town attorney was being cautious: he did not want Town officials to meet with a guy who was suing the Town. Not a bad strategy, the Court of Appeals says. Allowing public officials to have meetings like this with a litigation adversary can only mean trouble, for reasons that any lawyer can tell you. God knows what the municipal official might say to a litigation adversary. It could hurt the Town and come out at trial. Since the meeting denials caused no harm, and balancing that against the Town lawyer's prudent refusal to allow public officials to meet with Tuccio, the plaintiff has no case under the First Amendment. No harm, no foul.

What does it take to nudge an Iqbal claim across the finish line?

When the Supreme Court handed down Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) a few months ago, all the attention focused on Iqbal's failed attempt to blame former Attorney General John Ashcroft for Iqbal's detention in the aftermath of the 9/11 attacks. Civil litigators took away a different lesson from Iqbal: it got a little easier for trial courts to dismiss lawsuits without discovery. It is not enough for lawsuits to allege a conceivable civil rights violation; the lawsuit must allege a plausible violation. If you think this is a distinction without a difference, keep reading.

The case is Rutherford v. Katonah-Lewisboro School District, 2009 WL 3755382 (S.D.N.Y. Nov. 3, 2009), a case decided by Judge McMahon. This case is notable for other reasons, discussed here, but it also highlights what Iqbal has done to some civil rights cases. This case arises from allegations that a school teacher behaved inappropriately at a science fair. Judge McMahon starts off by observing that "in the suburbs, where education is the only priority, there us hyper-sensitivity on the part of all concerned whenever something remotely out of the ordinary happens at local schools."

The strange event here was that Rutherford allegedly destroyed student work and raised her voice. The school board decided to send her to a medical examination to see if she was physically or mentally fit to perform her duties. The board referenced this on its website, though it did not mention Rutherford by name, calling her only "Employee No. 785." She claims in the lawsuit that the school board stigmatized her with an allegation of mental instability only because the parents of the students who accused her of losing it at the science fair were on the school board.

Although Rutherford claims that the website reference violated her right to medical privacy and shocked the conscience in violation of the Fourteenth Amendment, she cannot proceed with this claim. Judge McMahon notes that Iqbal changes the ground rules for surviving a motion to dismiss. You have to allege enough facts to "nudge [its] claims across the line from conceivable to plausible." Conceivable is not the same thing as plausible. A rough way to see it is this way: conceivable means perhaps a 40 percent chance that the allegations support a claim. Plausible means greater than 50 percent.

Judge McMahon suggests that Rutherford's privacy and "shocks the conscience" claims are conceivable. But not plausible. The Complaint suggests that the school board did not intend to humiliate plaintiff; the website reference did not mention her name or gender. While the Complaint alleges that the school board acted "maliciously," without allegations to back it up, this buzzword is not going to cut it in the post-Iqbal world. The court adds, "It is simply not possible to infer malice from nothing more than the fact that the complaining children were the children of a board of education member. ... [W]hile it is conceivable that Defendants could have acted from the base motive of wanting to appease the complaining children's parent, no fact alleged in the complaint makes it plausible to think that Defendants did so."

School teacher hit with gag-order does not have First Amendment claim

A school district disciplined one of its teachers after she allegedly destroyed student work and raised her voice at a science fair. The district placed her on paid administrative leave and directs her "to have no further communication with any District employee," including "any verbal, written or electronic communication whatsoever" during her suspension. Is this an unconstitutional gag order in violation of the First Amendment?

The case is Rutherford v. Katonah-Lewisboro School District, 2009 WL 3755382 (S.D.N.Y. Nov. 3, 2009) a district court case decided by Judge McMahon. Plaintiff argues that this speech restriction violates the First Amendment because it violates the right of free association in that she cannot communicate with a union representative, who was a district employee. (Another issue of interest in this case -- the right to privacy -- will have to wait for now).

In resolving this issue, Judge McMahon is faced with a quandary: in public employee First Amendment cases, the courts require that the plaintiff establish that she was silenced on a matter of public concern. That issue typically arises when the plaintiff is retaliated against, i.e., she is demoted or fired for blowing the whistle. That did not happen here; rather, the gag order prevents plaintiff from speaking. Does the public concern test apply in this context? After providing a good overview of the state of the law in this area, the district court says "yes." If the public concern test arises in freedom of association cases involving retaliation, then it must apply in this case, where the plaintiff is simply prohibited from speaking to certain people. This is a complicated issue; the Second Circuit has never dealt with this precise point. But over the years, the courts have emphasized that there is no hierarchy among First Amendment rights in that there is no greater right to speak than there is to petition the government for grievances. The trend in "gag order" cases and freedom of association cases is to apply the "public concern" test in this context; Judge McMahon does so here. A contrary holding would give employees greater rights to associate than to speak out.

In framing the test this way, Judge McMahon dismisses the Complaint on this point. Plaintiff was not prohibited from engaging in associational matters on a public concern. Barring her from speaking to the union (if, in fact, that was the school district's intention) does not silence plaintiff on a matter of public concern because "the only reasonable inference that can be drawn from the pleadings is that Plaintiff's desire to communicate with her union representative was motivated by her own self-interest, not by any desire to vindicate federally protected labor relations policies. There is simply nothing in the complaint that suggests Plaintiff wished to confer wit her union representative about anything other than 'her desire to protect her job and/or her reputation as a schools counselor.'"

Moving right along, the district court next rejects the argument that the gag order is illegal because the school district, through the union contract, agreed that employees can speak with the union about personnel matters. A Tenth Circuit case supports this analysis, Shrum v. City of Coweta, 449 F.3d 1132 (2006), but Judge McMahon declines to follow Shrum because it is poorly-reasoned in that it misapplies Supreme Court authority which requires that courts resolve the threshold issue of whether the protected association impacts on a matter of public concern. (For you First Amendment mavens, it appears that the Tenth Circuit applied the Pickering balancing test -- involving potential disruption of school district functions arising from the speech -- rather than the public concern test).

In the end, the district court notes that she is not crazy about the attorneys' briefing in this case, and that "the parties have barely begun to scratch the surface of the issues presented by Shrum." No matter. Plaintiff ultimately must lose this issue on qualified immunity grounds. As readers of this blog may know, qualified immunity means public officials cannot be sued for damages if the claimed legal violation was not clearly-established at the time. There are no cases quite like this one in the Second Circuit, which means the law in this area is not clearly-established and the defendants cannot be expected to know the full contours of the law. However interesting Rutherford's freedom-of-association case may be, for now, that claim is too esoteric for her to prevail as a matter of law.

Second Circuit revives disability discrimination case

The Court of Appeals has been broadly interpreting the federal disability discrimination laws lately. A few months ago, it ruled that the children of hearing-impaired parents could sue a hospital under the Rehabilitation Act because they were required to interpret for their parents after their father underwent an emotional procedure. This time around, the Second Circuit rules in favor of a disabled woman who was denied a reasonable accommodation in order to visit with her incarcerated husband.

The case is Fulton v. Goord, decided on December 22. As Fulton has Multiple Sclerosis, it is difficult for her to travel long distances. When her husband was incarcerated 300 miles from home, she wanted him transferred to a prison closer to New York City. The state rejected that request. The trial court said that Fulton does not have standing to bring the claim because she has "no legally cognizable interest" in having her spouse transferred to a nearby prison. This analysis misunderstands the case, the Second Circuit (Walker, Jacobs and Leval) says. Rather, "the essence of Fulton's challenge is the defendants' refusal, in light of her disability, to provide her with, or even to consider, 'a reasonable accommodation to participate in the visiting program.'" As Fulton's claim alleges that she suffered harm as a result of the state's refusal to accommodate her disability under the visitation program, she has standing to sue. Citing Innovative Health Systems v. City of White Plains, 117 F.3d 37 (2d Cir. 1997), the Court of Appeals notes that the standing rules are relaxed under the federal disability discrimination laws.

The next question is whether Fulton states a claim for relief under federal law. The Second Circuit says that ... she might have a claim. The Court of Appeals does not definitively say that Fulton can sue. It says that the district court should give her case another look under Rule 12 to see if she states a claim upon which relief can be granted. But let's read between the lines. The Court of Appeals says that, in all likelihood, Fulton has a case, at least on paper. Fulton is an eligible participant in the visitation program, and she says that the state denied her a reasonable accommodation in the form of relocating her husband so that she can more easily visit him. Of course, this does not mean that all of her husband's relatives or acquaintances can bring a claim like this. "Reasonable accommodations" under federal law is a "relational term" that depends on the circumstances. In this context-specific inquiry, the wife probably has more rights than anyone else. As the district court also improperly interpreted her claim to mean that the transfer policy "is discriminatorily based on [Fulton's] disability," the case is sent back for the trial court to reconsider its opinion.

A footnote to this blog post is a footnote the opinion. The Second Circuit suggests ways that plaintiff could be accommodated short of moving her husband to a closer prison. This may be the first case in our Circuit which makes reference to Skype computer software:

For example, it is not unusual for prisoners to be shuttled to urban
centers for court appearances and prosecutorial interviews, and such a visit could also serve to accommodate a disabled spouse. Fulton herself posits that her husband could perhaps have been temporarily transferred “back and forth to a downstate facility accessible” to her for occasional visits. Other prisons have made similar short-term arrangements for disabled inmates. ... Absent transporting the prisoner or the visitor, there are also now electronic means for visits, such as via a “Skype”-style program over the internet. See generally Skype, http://www.skype.com (offering software that enables internet video and voice conferencing). In noting that the possibility of a reasonable accommodation is not unrealistic, we express no view on the reasonableness of any potential accommodation in the instant case. The DOCS likely has other commonplace practices that Fulton might benefit from, and it is for the DOCS, in the first instance, to determine whether any of them would be a reasonable accommodation in this case.

Inmates are not necessarily in "custody" for Miranda cases

Let's face it. It's getting harder and harder to win a habeas corpus motion in federal court. This time around, the Court of Appeals rejects a claim brought by an inmate who incriminated himself without Miranda warnings.

The case is Georgison v. Donelli, decided on December 7. In 1993, Georgison was accused to hitting someone with a pipe in the Bronx. This dispute apparently arose from an organized crime dispute over the garbage carting industry. Three years later, when Georgison was in jail on an unrelated offense, the authorities wanted to ask him questions about that assault the Bronx. Georgison met with these unarmed detectives in a visitor's room while a sergeant waited outside. Georgison was not read his Miranda rights but he did say a few things which incriminated him, i.e., he denied piping anyone even though the detectives said nothing about a pipe. He also admitted he was on the premises when the assault took place. These admissions got him convicted for assault, and he lost his appeals in the state courts. Hence, the habeas corpus petition.

The question is whether, in ruling against him, the state courts unreasonably applied settled Supreme Court authority. Under the 1996 habeas corpus law, state courts have some leeway in interpreting the U.S. Constitution. This kills a lot of habeas corpus petitions, and it dooms Georgison's. Miranda requires that anyone in police custody be read their rights before the police can ask them questions. Georgison relies on Mathis v. United States, 391 U.S. 1 (1968), for the proposition that inmates are per se "in custody" for purposes of Miranda and thus must be advised of their rights before answering law enforcement's questions. After all, inmates are not exactly free to leave the way the rest of us can.

The Second Circuit (Miner, Wesley and Stanceu [D.J.]) disagrees. The Court finds that "the Supreme Court has cast serious doubt on the existence of a per se or bright-line rule that would require Miranda warnings in the prison setting. The Court of Appeals notes that, in Bradley v. Ohio, 497 U.S. 1011 (1990), even Justice Marshall suggested in dissenting from the denial of certiorari that the Supreme Court had yet to "clarify what constitutes 'custody' for Miranda purposes in the prison setting." The Court of Appeals has also ruled in United States v. Newton, 369 659 (2d Cir. 2004) that "the mere fact of incarceration does not necessarily require that an individual be in the sort of custody that warrants Miranda warnings before an interview." This means that the law in this area is not clearly-establishes for purposes of winning a habeas corpus petition under the 1996 habeas law. The state courts, then, did not unreasonably apply constitutional law in ruling against Georgison. As he was free to get up and leave during the interview -- and he actually did so -- Georgison was not restrained during questioning, and Miranda warnings were therefore not required here.

NYPD breathalyzer policy does not violate Fourth Amendment

The NYPD imposed a policy that any officer who causes an injury as a result of gunfire must submit to a breathalyzer test to see if he was drinking. The police union challenged the policy as a Fourth Amendment violation. It's legal.

The case is Lynch v. City of New York, decided on December 11. The Fourth Amendment is quite brief. It says that the government may not subject you to unreasonable searches and seizures. Applying the Fourth Amendment is not so easy. What's reasonable? The answer to that question depends on the legal standard devised by the courts to make the amendment work. The standard here is "special needs."

The Second Circuit (Kearse, Cabranes and Straub) tells us that "The Fourth Amendment requires that searches and seizures be reasonable, and a search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Nonetheless, the Supreme Court has upheld certain regimes of suspicionless searches where the program was designed to serve special needs, beyond the normal need for law enforcement."

How do we apply the "special needs" doctrine? The court must determine the purpose of the search. Under "special needs," the primary purpose of the program must be unrelated to the government's general interest in crime control. If the search relates to a special need and is unrelated to a general interest in crime control, the court has to determine if the search is reasonable, i.e., "weighing the special need ... against the privacy interest advanced." This balancing test involves weighing (1) the nature of the privacy interest, (2) the nature of the government intrusion and (3) "the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs."

Again, this balancing test appears nowhere in the Fourth Amendment. But the general language in the Fourth Amendment is not going to resolve any cases. "Reasonableness" is not specific enough to assess government policies, street searches and other intrusions. Here, the "special needs" test upholds the breathalyzer search, which is primarily unrelated to crime control; it ensures that an officer who fires his gun while intoxicated is quickly disciplined or removed from duty. The point is not to prosecute the officer. The policy also deters officers from carrying their guns while intoxicated. Personnel management is not crime control, the Court of Appeals concludes, and neither is NYPD's desire to promote its reputation.

What complicates things is that there is one crime control objective here: every shooting is a potential crime and breathalyzer tests produce useful evidence against the officer. But while the policy has multiple purposes -- "some unrelated to crime control and one directly to crime control" -- crime control is not the primary purpose. Since law enforcement officers have a diminished expectation of privacy and they already submit to drug testing, the three-part balancing test favors the City, and the police union is not entitled to a preliminary injunction against the policy. The City's "special needs" outweigh the union's privacy interests.

Solving the Simmons puzzle

For purposes of awarding attorneys' fees to lawyers who represent successful plaintiffs, the Court of Appeals has been gone out of its way to distinguish between the four judicial districts in New York. The highest rates are in the Southern District of New York, which includes Manhattan. The other districts, including adjacent Eastern District of New York, have lower hourly rates. If your office is in Manhattan but you win a trial in Brooklyn (EDNY), there are ways to get the higher SDNY rates, but it's not easy.

In Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir. 2009), summarized here, the Second Circuit said that the SDNY lawyer who wins the trial in Brooklyn can get SDNY rates if the plaintiff can establish that her lawyer would likely have produced a much better result than a lawyer in EDNY.

The Court therefore presumes that a district court should award fees at the prevailing market rate in the district in which it sits. To overcome the presumption in favor of this "forum rule," the plaintiff must show “that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result.” Under Simmons, “[a]mong the ways an applicant may make such a showing is by establishing that local counsel possessing requisite experience were unwilling or unable to take the case.”

This is a difficult standard to apply. There are many good civil rights lawyers in the Eastern District of New York. How can a lawyer in Southern District of New York (with its much higher hourly rates) prove that she was the best choice for the EDNY lawsuit? We found out in early December. The case is Germain v. County of Suffolk, 2009 WL 4546671 (E.D.N.Y. Dec. 5, 2009). Germain had a discrimination lawsuit in EDNY. Plaintiff's first law firm was disqualified from the case, and other law firms on Long Island wanted too much money up front and charged hourly rates. Other lawyers did not call her back. Of course, they are now regretting their actions. Germain won the case, and the lawyers who did represent her without charge receive attorneys' fees in excess of $200,000.

Germain's difficulties in finding an EDNY lawyer to handle her case entitle her lawyers (whose offices are in Manhattan) to SDNY rates. In this case, Germain's lawyer, Janice Goodman, Esq., recovers $450.00 per hour. Germain solves the Simmons puzzle. Judge Spatt reasons:

On these facts, the Court finds that the Plaintiff has met her burden to show that it was necessary for her to retain out-of-district counsel. After DeJong was disqualified and other local civil rights attorneys in Long Island declined to take the case on a contingent basis, the Plaintiff was faced with the choice of proceeding pro se or retaining out-of-district counsel. Under the circumstances, it was reasonable for the Plaintiff to believe that Goodman, an experienced civil rights lawyer, could produce a substantially better result than any relief she might have been able to obtain acting pro se. Accordingly, the Court finds that the conventional forum rule does not apply in this case.

This is a mixed result. True, Judge Spatt applied SDNY rates for an EDNY case. But cases like this strike a nerve among civil rights lawyers who maintain offices in Manhattan but try cases in Brooklyn. The Simmons equation really grows out of an earlier Second Circuit attorneys' fees case, Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008), where the Court of Appeals presumed that the hourly rate should be assessed based on the district in which the case was tried, not where the lawyers have their offices. Albany (where the Arbor Hill case was handled) may be far from New York City (where the Arbor Hill lawyers had their offices), but Brooklyn is only a few subway stops from the SDNY courthouse in Manhattan. The EDNY/SDNY distinction is the subject of a particularly interesting footnote in Gutman v. Klein, 2009 WL 3296072 (EDNY Oct. 13, 2009), where Judge Cogan noted that many of the cases pending in EDNY are actually handled by SDNY lawyers. Footnotes like this are always worthy reading. Here is part of it:

A purely geographic lodestar also ignores the practical reality of practicing law in New York, which the docket of this Court reflects. Of lawyers that currently appear before this Court, 307 of the lawyers have offices in the Eastern District, while 727of the lawyers have offices in the Southern District. This raises the question of exactly what is the bar that practices in this district. Indeed, much less travel time is chargeable to clients coming from Manhattan to this Court than from Riverhead, which is within this district. Moreover, the two district courts have recognized the significant overlap between attorneys practicing in the Southern and Eastern Districts by adopting a single set of Local Rules for both districts. Even Congress has recognized the overlap by allowing an exception from the normal district-only residence requirement for U.S. Attorneys and federal judges, an exception which permits United States attorneys and federal judges, unlike any other district except the District of Columbia, to reside in one district and work in the other. See 28 U.S.C. § 545(a) (U.S.Attorneys); 28 U.S.C. § 134(b) (district court judges). This is just part of the reality that law is now practiced in an environment where law firms maintain multiple offices nationwide, attorneys maintain multiple federal bar admissions and have national practices, and modern telecommunications permit court appearances by video and telephone. It may be that the concept of a geographically-based as opposed to case complexity-based lodestar will someday have as much relevance to the selection of an attorney as dinosaurs have to birds.

PLRA limits attorneys' fees even if inmate is released from jail

In the mid-1990's, Congress limited the attorneys' fees for inmates who won their civil rights cases. Generally, if a civil rights plaintiff wins the case, her attorney recovers fees, usually calculated by multiplying the lawyer's hourly rate by the hours expended on the case. But under the Prison Litigation Reform Act (PLRA), the attorney's hourly rate is limited under a formula which allows the attorney $138 per hour in the Southern District of New York. This is a lot lower than the hourly rate for experienced lawyers in New York.

The case is Perez v. Westchester County of Corrections, decided on November 20. I wrote about this case in the context of the lawyer's entitlement to attorneys' fees where the case did not prevail at trial but, instead, settled. This installment covers another attorneys' fees issue: whether the PLRA limitation on fees applies when the inmates are released from prison. The Court of Appeals answers that question in the affirmative.

The lawyers in this case got nearly $100,000 in challenging the County's food policies which affected the religious practices of Muslim inmates. But that amount would have been a lot more had the PLRA not attached. Under the PLRA, fees are limited "in any action brought by a prisoner who is confined in any jail, prison, or other correctional facility." How does this language apply when the plaintiff is no longer an inmate? Plaintiffs argue that the congressional concerns in enacting the PLRA do not apply since that law was intended to dissuade prisoners from wasting everyone's time with frivolous lawsuits. That is no longer a concern when the inmate is once again a productive member of society and has better things to do than to file lawsuits.

The Court of Appeals (Calabresi, Livingston and Korman, D.J,) appreciate plaintiffs' arguments, which Judge Chin had recognized in an unrelated case, Morris v. Eversley, 343 F.Supp.2d 234 (SDNY 2004). But the Second Circuit sides with the County on this one. Reasonably read, the law is best interpreted to limit attorneys' fees if the plaintiffs were inmates at the time the lawsuit was filed. Remember, the law references "any action brought by a prisoner who is confined ..." This means the PLRA applies if the plaintiff was confined when he brought the action. The Court of Appeals does recognize an anomaly in this reading: plaintiffs who wait until they leave prison before filing suit are not limited under the PLRA. Even so, the Court finds, "Congress may well have thought that persons still incarcerated were more inclined to bring suits than those who were back in the world and now had less time on their hands and better things to do with it."

No due process violation where village demolishes damaged building

I may not know much, but I do know this: due process claims in the Second Circuit are very hard to win. Especially when they involve emergencies resulting from damaged buildings which require municipal officials to take them down quickly.

The case is WWBITV, Inc. v. Village of Rouses Point, decided on December 9. Plaintiffs' building was an old hotel that caught fire in June 2006. After the fire, the building was in bad shape. As the Second Circuit (Lynch, Miner and Katzmann), puts it, "The roof and the top floors had been completely destroyed. Debris hung off the hotel’s facade, and officials were concerned that it would fall into the street. The instability of the building, as well as its proximity to the street, necessitated the closing of State Road 11." The next morning, a team of contractors tore it down at the direction of the village board, which held an emergency meeting. While the board did publicize the meeting, it did not tell the Clarkes, who owned the building.

Plaintiffs claimed that by tearing down the Hotel without providing any form of prior hearing, the Village deprived them of their property without due process of law in violation of the Fourteenth Amendment. True, due process requires the government to provide notice and an opportunity to be heard before it deprives you of your property (or liberty). But not in emergency situations. When the building is unstable, there is no time for pre-deprivation process. The building can collapse while the due process procedures are unfolding. That's been the law in the Second Circuit since 1999, when the Court of Appeals sustained summary judgment in Catanzaro v. Weiden, 188 F.3d 56 (2d Cir. 1999), which involved similar facts except that the building was damaged when someone drove a car into it. (I represented the plaintiff in Catanzaro, where the Court of Appeals first vacated summary judgment before changing its mind on a motion for re-hearing).

The rule in Catanzaro is that "where there is competent evidence allowing [an] official to reasonably believe that an emergency does in fact exist ... the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion.” Tough standard for due process plaintiffs to get around. And the Clarkes don't get around it in this case. While the Clarkes suggest they could have convinced village officials to employ less drastic methods to protect public safety, that is not enough to win the case. Under the "arbitrary and capricious" standard, the Court will defer to municipal judgment where every minute counts. The Second Circuit reasons, "As Catanzaro makes clear, such hindsight analysis of a municipality’s means of dealing with an emergency would encourage delay and risk increasing the public’s exposure to dangerous conditions."

Bergstein & Ullrich settle disability discrimination suit

Mount Kisco agrees to provide sign-language interpreters in court

Timothy O'Connor
Westchester Journal-News
tpoconnor@lohud.com
December 12, 2009

Mount Kisco's municipal court has agreed to provide interpreters for hearing-impaired crime victims, witnesses and parties in the village court to settle a federal lawsuit filed by an alleged victim of domestic abuse.

Dorothy Silva, a deaf woman from Somers, sued last year after attending proceedings in Mount Kisco Village Court where her alleged abuser was charged with harassing her.

Silva said she could not follow the proceedings because court officials didn't provide an interpreter for her.

"As a result of (Mount Kisco's) failure to provide (Silva) with a sign-language interpreter, she was unable to sufficiently understand, participate in and otherwise follow the criminal proceedings against her abuser," her lawyer Stephen Bergstein wrote in the lawsuit.

Court officials told Silva there wasn't enough money for a sign-language interpreter, the lawsuit said.

In a settlement of the lawsuit filed in U.S. District Court in White Plains, the village agreed to provide sign-language interpreters for those who need such assistance.

"This policy represents one of the few written guidelines adopted by any municipality on this issue," Bergstein said Friday.

Bergstein was assisted by an attorney from Independent Living in Newburgh in drafting the new policy. He said towns and villages often fail to comply with the Americans with Disabilities Act's requirements to provide such assistance.

"Hearing-impaired persons have a right to know what is happening in court when they are crime victims and their abusers are prosecuted and being sentenced," he said.

Mount Kisco Mayor J. Michael Cindrich said the matter could have been handled without the filing of a lawsuit.

"It was an amicable settlement," he said. "We provide interpreters for every group of people that needs them, regardless of language or disability ."

Silva filed the suit in January 2008, 10 months after she attended proceedings involving her former boyfriend, who is the father of her daughter. The suit says she will likely have to return to court for further hearings.

The settlement does not call for Silva to receive any money from Mount Kisco. That was fine with her, Bergstein said, because the goal of the lawsuit was not financial.

"It really wasn't about money," he said. "It was about changing the policy."

No costs for losing plaintiff in funky search case

When you lose an appeal in federal court, you usually have to pay the winner's costs. These costs usually include the out-of-pocket expenses for bringing the appeal, including photocopying and other necessary expenditures. This may not sound like much, but it can total more than $1,000. What if the losing plaintiff doesn't have the money?

The case is Moore v. County of Delaware, decided on November 2. In July, the Court of Appeals rejected Moore's due process claim arising from a warrantless police search of his house when his lover called authorities after entering the house without his permission and panicked when an unidentified caller rang the telephone. The police showed up and discovered drugs in the house, and then the government seized Moore's property, allegedly without due process. The Second Circuit held that defendants had qualified immunity from suit because the legal violation was not clearly established.

Pouring salt into the wound, the government then sought costs from Moore in the amount of $2,572.18. Moore objected because he is "nearly destitute." Although an award of costs is the rule, not the exception, the Court needs a good reason to waive them. The Court of Appeals (Cabranes, Hall and Stein, D.J.) does not set forth a bright-line rule that says nearly destitute losing parties do not have to pay costs. Instead, the Court says "denial of costs may be appropriate where a losing party can demonstrate misconduct by a prevailing party, the public importance of the case, the difficulty of the issues presented, or its own limited financial resources."

These factors weigh in Moore's favor. The case did involve governmental misconduct even though the government ultimately prevailed, in that the evidence seized from Moore's property was suppressed by a state court. Moore brought this case in good faith and, of course, he cannot afford the costs. Under the circumstances, he's off the hook for the $2,572.18.

Post office retaliation case is reinstated for trial

In baseball, a tie goes to the runner. In litigation, close calls on the evidence go the jury. At least in employment discrimination cases.

The case is Faul v. Potter, decided by summary order on December 9. Roberta Faul worked for the Post Office. She filed a discrimination complaint with the Equal Employment Opportunity Commission in May 2002 and her position was eliminated in March 2004. Normally, if you want to prove a retaliation claim through circumstantial evidence, this nearly two-year gap between protected activity and termination is too long to connect the EEOC complaint with her termination. But, as the Court of Appeals (Raggi, Walker and Dearie [D.J.]), reminds us, causation is proven either "indirectly, by showing that the protected activity was followed closely by discriminatory treatment ... or directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Faul meets this de minimus burden through evidence that her superior, Sands, threatened her job in September 2002.

The harder issue is pretext, a necessary element to Faul's claim. Faul can prove that management's reason for the elimination of her position was pretextual. The Second Circuit goes out of its way to praise the district court for its careful review of the case. This seems to have been a close one. But the Court of Appeals here is taking seriously the principle that all ambiguities are interpreted in the plaintiff's favor on a summary judgment motion.

After Faul filed her EEOC charge, Sands requested an audit of his own office. This was an unusual maneuver, and it may establish that he was looking for a way to fire Faul. While the auditors recommended that Faul's position be eliminated, the record suggests that Sands had the final say on this decision. The Court concludes, "the record here permits the inference that it was Sands's retaliatory motives that occasioned not only their arrival, but also implementation of their recommendation" to eliminate Faul's position. The fact that Sands and Faul were not getting along in the 15 months between her EEOC complaint and the audit further helps Faul's position on appeal. It was apparently also unusual for an occupied position to be excessed. On this record, Faul gets her day in court.

JP Morgan underwriters are entitled to FLSA overtime pay

Not everyone is entitled to overtime. The Fair Labor Standards Act says that you get overtime pay if you work more than 40 hours per week unless, among other things, you work in a "bona fide executive administrative, or professional capacity." This provision brought a Mr. Michael J. Davis and his co-workers into Federal court against J.P Morgan Chase.

The case is Davis v. J.P. Morgan, decided on November 20. Davis and others were underwriters responsible for approving loans in accordance with guidelines provided by J.P. Morgan, which regarded these employees as exempt from the FSLA. This was a huge gamble. If J.P. Morgan called it wrong, it can owe a lot of people a lot of money. J.P. Morgan called it wrong, the Second Circuit (Lynch, Pooler and Livingston) rules in vacating summary judgment in favor of the employer.

Federal regulations say that someone works in a bona fide administrative capacity if she performs work "directly related to management policies or general business operations" and "customarily and regularly exercises discretion and independent judgment." This is in contrast to "'production' or, in a retail or service establishment, 'sales' work." Where do the plaintiffs in this case fall?

Underwriters at Chase were primarily responsible for selling loan products under management's guidelines. As the Second Circuit puts it, "Underwriters were given a loan application and followed procedures specified in the Credit Guide in order to produce a yes or no decision" from the customer. "Their work is not related either to setting 'management policies' nor to 'general business operations' such as human relations or advertising, but rather concerns the 'production' of loans -- the fundamental service provided by the bank." As far as the FLSA is concerned, these underwriters fall under the category of production rather than of administrative work.

This opinion was written by Judge Lynch, newly appointed to the Second Circuit. He was a district court judge when he heard the appeal and became a Circuit judge when he wrote the opinion. The opinion is well-structured. It starts by suggesting that Second Circuit authority points in this direction, and then it cites what the Court deems "persuasive decisions of our sister circuits" as well as district court rulings in the Second Circuit. Trial court decisions from around the country round out the discussion. Judge Lynch then distinguishes a few cases cited by J.P. Morgan from around the country. Legal scholarship that any Second Circuit junkie can appreciate.

Supervisor's "purposeful ignorance" of sexual harassment may violate Title VII

What is an employer's obligation to rid the workplace of sexual harassment? And when can we presume that management even knew about a hostile work environment? In a ruling handed down last week, the Second Circuit held that a manager should have known that a female subordinate was a sexual harassment victim and that the district court should not have granted summary judgment to the employer.

The case is Duch v. Jakubek, issued on December 4. This case actually raises several issues surrounding employer knowledge of a hostile work environment and its obligation to clean up the workplace. While two managers knew that Duch was being harassed, one of them was actually excused for not taking remedial action. As the Second Circuit does not issue many rulings on the employer's liability for co-worker harassment, this is an important case.

Duch worked for the Office of Court Administration. She was harassed by Kohn. When Duch was assigned to work with Kohn, she asked her supervisor, Jakubek to change her schedule. Kohn told Jakubek that he may have done "something or said something that I should not have." When Jakubek spoke about this with Duch, she said she did not want to talk about it. Jakubek was fine with this. He told Duch that "I don't want to know what happened."

Duch more explicitly told the EEO liaison, Christiano, about the harassment. But Duch did not speak to Christiano about this in her role as EEO liaison; she spoke to Christiano as a friend. Duch told Christiano not to report Kohn's harassment, and Christiano did not report it.

While Christiano actually knew about the harassment and Jakubek had reason to know about it, no one reported it, and Duch deteriorated mentally. If Title VII requires management to take prompt remedial action to investigate and remedy sexual harassment, is OCA liable for the inaction of Jakubek and Christiano? The answer is No and Yes.

First, some underbrush. Management did provide Duch a reasonable avenue to complain about the harassment. Christiano may not have been the best EEO officer in the world (she did not go to the sexual harassment training and inappropriately suggested that Duch "grab and hurt" the harasser. But OCA had other avenues for complaint besides the EEO office, including the Inspector General, other supervisors and a Work Life Program representative. If Duch is going to win the case, it will not stem from OCA's lack of reasonable avenues for complaint.

She also cannot win on the basis of Christiano's failure to report the harassment. According to Christiano's unrefuted testimony, Duch told Christiano not to report it. The Second Circuit dealt with a similar issue in Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), which presumes that the victim's instruction that a supervisor not take action on the harassment will absolve the company of any Title VII liability. Although Torres says that "there is certainly a point at which harassment becomes so severe that a reasonable employer simply cannot stand by, even if requested to do so by a terrified employee," as Christiano was not aware of the extent of Duch's emotional harm, she did not drop the ball in keeping Duch's confidence.

It is Jakubek's inaction which may violate Title VII, entitling Duch to a trial. Supervisors have a duty to take affirmative steps to stop the harassment. He knew that Duch did not want to work with Kohn and that Kohn had engaged in sex-related misconduct toward women in the past. He also told Kohn to "grow up" in hearing from Kohn himself that he may have done something wrong. Jakubek also told Duch that he did not want to hear about her problems with Kohn. The Second Circuit (Cabranes, Leval and Hall) concludes, "Based on this aggregation of facts, a jury could reasonably find that Jakubek strongly suspected that it was sexual harassment on Kohn's part that was responsible for Duch's emotional reaction, that Jakubek knew the issue was ongoing" and that Jakubek had a duty to inquire further rather than to discourage Duch from revealing the full extent of the harassment. In other words, a supervisor's "purposeful ignorance of the nature of the problem ... will not shield an employer from liability under Title VII."

Jakubek's inaction means that OCA could lose the case at trial. Jakubek had reason to know of the harassment October 2001, when he spoke with Duch about her problems with Kohn. Although management got around to investigating the harassment in January 2002 (when Duch told someone else about it), that was too long after Jakubek's constructive knowledge of the hostile work environment.

Defendant pays nominal damages and walks away from the case

There are ways for defendants in Section 1983 cases to make the lawsuit go away by simply consenting to judgment for the plaintiff. They can even do it without any concession of liability on their part. This is an obscure procedure, but it surfaced recently in a First Amendment case against the President of the College of Staten Island.

The case is Husain v. Springer, 2009 WL 3422927, decided by the Eastern District of New York on October 26. If you're a First Amendment junkie, Husain is a hell of a case. It started in 1997 when the college president nullified the student elections because the college newspaper had allegedly broken the rules in endorsing student candidates. In 2007, the Court of Appeals held that the newspaper editors had a case under the First Amendment because the college's act of nullifying the student elections had a chilling effect on the newspaper's First Amendment activity. That decision is reported at 494 F.3d 108 (2d Cir. 1997). The Second Circuit ruling was notable not only for its innovative First Amendment reasoning but because Chief Judge Jacobs dissented despite admitting that he did not want to waste his time by reading the majority opinion.

Interesting case, but the newspaper editors are only entitled to nominal damages. These damages are separate from pain and suffering and punitive damages. Nominal damages are available when the defendant has broken the law but no other damages are available. The case can proceed on a nominal damages theory, and in constitutional cases it may be the only way that courts can decide important precedents where the plaintiffs have not suffered tangible damages.

What happened here is that after the Court of Appeals reinstated the case, the defendant college president decided to end the case by paying out the damages to which plaintiffs are entitled: one dollar for each of the eight plaintiffs. Despite paying out the damages, the defendant does not have to concede liability. Is this legal? Yes, says the court. Defendants can consent to judgment and pay any appropriate damages without conceding liability. As the Court of Appeals has held, "There is no justification for taking the time of the court and the defendant in the pursuit of minuscule individual claims which defendant has more than satisfied." Abrams v. Interco Inc., 719 F.2d 23, 32 (2d Cir. 1983). Judge Gershon applies that logic in this case, and the case is over after 12 years of litigation.

Plaintiffs vigorously objected to this tactic, but Judge Gershon cites from a Fifth Circuit case holding that "A winning party cannot appeal merely because the court that gave him his victory did not say things that he would have liked to hear, such as that his opponent is a lawbreaker." Judge Gershon also emphasizes that the Second Circuit's ruling in this case is still good law and a viable precedent. So, the decision in this case ends with language you don't normally see in civil rights cases: "Defendant's motion for entry of judgment against herself is granted."

It's not defamatory to accuse inmate of cooperating with authorities

How would you like it if someone accused you of cooperating with the police? What if you were in jail and other inmates frowned upon that allegation? Is it defamation? The Second Circuit says it is not.

The case is Michtavi v. New York Daily News, decided on November 25. Michtavi is in jail, convicted on a narcotics offense. After the Daily News wrote that he planned to cooperate with police and testify against an organized crime figure with whom he was associated, he sued for defamation.

Courts ask what a "right-thinking person" would think of the allegation in determining whether the plaintiff is entitled to protect his reputation in a defamation suit. The Court of Appeals (Jacobs, Kearse and Gardephe, D.J.) notes that the Restatement on Torts says that a statement is not defamatory if the relevant audience carries "standards [that] are so anti-social that it is not proper for the courts to recognize them."

Well, you know where this is going. The relevant audience here is the inmate population which doesn't like cooperating witnesses. This is not enough for plaintiff. In the context of a defamation case, no one really cares what inmates think. Citing cases which include a State Supreme Court decision from 1941 and a Southern District case written by Judge Mukasey (who later became Bush 43's Attorney General), the Second Circuit notes that "The population of right-thinking persons unambiguously excludes 'those who would think ill of one who legitimately cooperates with law enforcement.'"

Court of Appeals affirms overtime ruling for non-exempt worker under FLSA

The Second Circuit has ruled in favor of a worker who was denied overtime pay, ruling that the Fair Labor Standards Act does not exempt workers whose job skills are not customarily the product of advanced educational training.

The case is Young v. Cooper Cameron Corp., decided on November 12. Young was a highly-skilled Product Design Specialist II with 20 years of engineering-type experience but no college degree. He worked with hydraulic power units which contain fluid under pressure for use in connection with oil drilling rigs. After Young was let go in a reduction-in-force, he sued for all the the overtime which defendant had denied him.

The legal standard governing whether a worker is exempt from overtime pay is whether he is employed in a professional capacity. Regulations define "professional" as employees whose work requires "knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study." We presume that if the job requires an academic degree, the job is exempt from FSLA. (This means that lawyers who did not go to law school are still exempt).

As the Court of Appeals (Jacobs, Pooler and Parker) frames it, "the issue is whether a position can be exempt notwithstanding the lack of an educational requirement, if the duties actually performed require knowledge of an advanced type in a field of science or learning." The judgment in Young's favor is affirmed. Chief Judge Jacobs writes, "an employee is not an exempt professional unless his work requires knowledge that is customarily acquired after a prolonged course of specialized, intellectual instruction and study.." Although Young had specialized knowledge, he was entitled to overtime under FSLA because his job did not customarily require an advanced degree. In fact, none of the employees in his title had more than a high school education.

The Court of Appeals handled this issue on a clean slate in this Circuit, but it does note that other federal circuit courts have ruled the same way. The Court of Appeals does reject as non-persuasive some contrary district court rulings and an unpublished Eleventh Circuit case. Although this is an issue of first impression in the Second Circuit, the Court of Appeals also sustains the district court's finding that Cooper Cameron's erroneous classification of Young as exempt was willful, which entitles Young to additional damages.