Tuesday, June 30, 2009

What did the Supreme Court do in the Ricci case?

The most controversial Supreme Court case of the year was handed down on June 29, re-working the rules governing employment discrimination cases. The case involving firefighter test scores in New Haven took on added significance because Ricci v. DeStefano arose from the Second Circuit, where future Supreme Court Justice Sonia Sotomayor was on the three-judge panel that ruled in favor of the City.

The case has touched a nerve. Those favoring the white firefighters argue that the City practiced reverse discrimination in rejecting promotional examinations which disparately impacted minority candidates. But the case actually became the perfect storm in which two competing legal principles collided.

Title VII of the Civil Rights Act of 1964 is the relevant law. The Supreme Court has long recognized two ways to win an employment discrimination case. The most common method is "disparate treatment," or McDonnell-Douglas cases, where the employer violates the statute in making employment decisions because of race. The other method (invoked less frequently) is "disparate impact," where an employment test or other selection criteria has a disparate impact on black candidates. Employers lose disparate impact cases unless the selection criteria is "job related for the position in question and consistent with business necessity."

In New Haven, white candidates had substantially outperformed black test-takers on the promotional exams. The City was faced with a dilemma. If the City did not certify the test results, the successful test-takers could sue for disparate treatment; after all, they could argue, they were eligible for promotions but the tests were thrown out for racial reasons, i.e., few minorities passed. On the other hand, the City was staring disparate impact liability in the face if it certified the test but could not show the tests were job-related and consistent with business necessity. This was a problem. After its Civil Service Board heard evidence on the test's validity from the consultant who created the test and experts who raised questions about the examination's fairness, the City decided against certifying the examinations in recognition that Title VII prohibits disparate impact.

But what about disparate treatment? The firefighters who passed the test claimed the test was essentially thrown out because of race. Technically, they were right. But disparate impact liability necessarily takes race into account in that the employer has to think twice when a substantial portion of the minority test-takers fail the test and the City may not be able to prove the test was valid or job-related. So we are going around in circles here.

After the Second Circuit affirmed the trial court's ruling in favor of the City, the Supreme Court took the case. This was before President Obama nominated Judge Sotomayor for the Supreme Court, which reverses the Court of Appeals and sets down new rules for this unique problem.

Justice Kennedy recognizes that it's a tough call. And he's not about to disparage the future Justice Sotomayor. Framing the issue, the Court asks "whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination." Neither side offers a satisfactory solution. The firefighters, for example, make the rigid argument that the employer cannot make race-based employment decisions even for the purposes of avoiding clear disparate impact liability. That approach undercuts Title VII's recognition that the law prohibits facially neutral selection rules which have a prohibited disparate impact. But the City does not offer a satisfactory solution, either. It argues that the employer's good faith belief that it was trying to avoid disparate impact liability is enough to throw out the tests. The problem with this approach is that, in codifying disparate impact liability in 1991, Congress did not outline any good-faith justifications for disparate treatment in this context.

The Supreme Court therefore devises a new rule: the employer may discard a selection criteria (such as a written examination) if it "has a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision." The Court borrows this standard from affirmative action cases decided under the Constitution's Equal Protection Clause. My guess is that no one offered up this legal standard to the Supreme Court for the purposes of resolving this case. But the Supreme Court can think for itself.

Under the standard, the Supreme Court finds that New Haven cannot show that it had a strong basis in evidence that that the test was deficient and that it was justified in avoiding disparate impact liability. By way of example, while the City was faced with a prima facie case of disparate impact liability in light of the large numbers of minorities who failed the test, it did not do enough to ensure that the test was truly deficient. Among other things, the Court says, "the City ... turned a blind eye to evidence that supported the exam's validity" in that it did not request the validation report prepared by the consultant who created the test.

This was a 5-4 case, with the usual line-up on each side. Supreme Court watchers know what I'm talking about. Kennedy, Roberts, Alito, Thomas and Scalia voted with the majority. The four dissenters signed on to Justice Ginsburg's dissent. She is the only current Justice who represented plaintiffs in employment discrimination cases. She proposes a different legal standard: "I would ... hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII's disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity." So, rather than apply the "strong basis in evidence" standard, the dissenters would apply a "good faith" defense. Obviously a more favorable legal standard for employers who want to diversify the workplace with qualified candidates.

As the dissent sees the case, this test had many problems. "Relying heavily on written tests to select fire officers is a questionable practice, to say the least." Leadership skills which include good interpersonal skills, the ability to make decisions under tremendous pressure and other skills are are more appropriately tested in other ways. (People say this about the written bar exam's ability to test good lawyering skills, by the way). Justice Ginsburg further suggests "it is unsurprising that most municipal employers do not evaluate their fire-officer candidates as New Haven does," and "nearly two-thirds of surveyed municipalities used assessment centers ('simulations of the real world of work') as part of their promotion processes." Moreover, the dissenters said, nearby Bridgeport "saw less skewed results after switching to a selection process that placed primary weight on an oral exam."

Politicos who will use the Ricci case to bash Judge Sotomayor should look elsewhere. The Supreme Court does this all the time: resolving a case by adopting a legal standard that few, if any, courts had previously employed. The Court did this in 1998 when it ironed out competing legal standards among the lower federal courts governing employer liability in sexual harassment cases. That the Court overruled a Second Circuit ruling that Judge Sotomayor had joined is no basis to question her legal acumen. As her colleagues on the Second Circuit had suggested when other judges on the Court of Appeals weighed in on the issue afterwards, the panel that ruled against the firefighters was applying Circuit precedent, without the benefit of any Supreme Court authority. As one Second Circuit panel cannot overrule Second Circuit precedent on the same issue, the panel that ruled against the firefighters arguably had no choice. At a minimum, without any definitive guidance from the Supreme Court on how to resolve this sticky issue, the fact that the Court ultimately rejected Judge Sotomayor's reasoning is a fact of life familiar to anyone who understands federal court practice.

Friday, June 26, 2009

Student strip search is illegal, but family gets no relief

The Supreme Court does not always know what to do with students' rights cases. The Court has sharply restricted First Amendment protections over the years, most recently in the Bong Hits for Jesus case, where the Court allowed a school principal to punish a student who unfurled the Bong Hits banner off-campus during a field trip. But this time around the Court strikes down a student's search and seizure under the Fourth Amendment, but with a catch.

The case is Safford Unified School District v. Redding, decided on June 25. The 13-year-old student was accused of bringing Ibuprofen into the school. She denied it (but admitted to some unrelated misconduct). School officials searched her belongings, including her backpack, but found nothing. Then a female administrative assistant and school nurse had the girl remove her shirt and pants and "was told to pull her bra out and to the side and shake it, thus exposing her breasts and pelvic area to some degree." Again, no pills.

As they say in law school, "what result?" There was much speculation over this case, partly because Justice Ginsburg suggested that male judges did not understand how a search like this could humiliate a young girl. But when the dust settled, the Court holds by an 8-1 vote that the search violates the Fourth Amendment. This was a strip search, Justice Souter writes, in what may be his last opinion before his retirement. The girl had an expectation of privacy in her underwear and bra, and the Court agrees this is particularly humiliating for an adolescent.

Under a precedent from 1985, the legal standard is that "the search as actually conducted [must] be reasonably related in scope to the circumstances which justified the interference in the first place." The school fails the legal test. Under the circumstances, the strip search was too intrusive. The principal knew the drugs in question were equal to two Advils. While, the Court says, any drug can be dangerous if taken in large quantities, the principal had no reason to suspect that students were passing around a lot of drugs. Nor did he have any reason to believe the girl had drugs in her undergarments. "Nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear." All things considered, the search was not justified. This case makes it difficult for public schools to strip-search students in the future.

But while the Court rules that the search was illegal, the individual defendants are immune from any damages claim. Why? Qualified immunity. This legal doctrine means that public officials cannot be sued for money damages if the state of the law was not clear at the time of the violation. We know the state of the law at the time of the violation by looking to court rulings in similar cases. You could see this coming. The Supreme Court's analysis of whether the search went too far cited few precedents on the subject. That's a tell-tale sign that the law was not clearly established. These cases do not come around very often, so the courts have had relatively few opportunities to outline the contours of student search and seizure rights. The primary Supreme Court case on student searches, New Jersey v T.L.O., 469 U.S. 325 (1985), has been interpreted zillions of ways in the lower federal courts, some of which are more deferential to school officials than others, and many of which are well-reasoned, according to Justice Souter. Under the circumstances, the Court cannot say the state of the law in this area was sufficiently clear that the defendants knew they were breaking the law in subjecting the girl to a strip search.

An astute reader points out, however, that the school district may still be held liable, however, because districts are not entitled to qualified immunity. The Supreme Court is sending the case back to the lower courts to determine whether the plaintiff can prevail against the district under Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978), which holds that municipalities are liable for civil rights violations if they result from a policy or practice.

The lone dissenter is Justice Thomas, who thinks the courts are too intrusively second-guessing school officials in discipline cases and that it's time to revert to the common-law doctrine of in loco parentis, in which school authorities stand in for the parents when students are in the building. In any event, Justice Thomas thinks the search was legal even under existing legal standard governing student searches.

Thursday, June 25, 2009

2d Circuit grants conscientious objector status to military doctor

The Court of Appeals holds that a military doctor is entitled to conscientious objector status, crediting his belief that American involvement in Iraq and Afghanistan prompted him to sincerely change his mind about the morality of war.

The case is Watson v. Geren, decided on June 25. Watson is a doctor who joined the army in 1998. In 2004-05, after much soul-searching and study, Watson determined that he is opposed to all war, the Iraq and Afghanistan Wars in particular. He decided that his beliefs are incompatible with working for the army. The decision highlights the extensive process comprising the application for conscientious objector status, as Watson had to detail his beliefs, including when he developed his opposition to war. The application mentioned that he marched in anti-war rallies. Here is what he wrote, in part:

Over the past eight plus years of my medical training, more than seven years since the signing of my contract with the Army, the single unifying theme of all my academic and professional endeavors has been the improvement of individuals’ health and wellbeing.

The world and I both have since changed significantly from when I first entered this contractual relationship with the U.S. Army. As a form of retaliation and under the pretense of national security, the United States military has invaded and occupied a foreign country in an unprecedented pre-emptive war and I have become a doctor who now views war as an unacceptable lapse of reason, the ultimate act of futility and an entirely shameful human endeavor.

The tragedy of September 11, 2001 and our subsequent response in Afghanistan and Iraq have been profound catalysts for introspection, and constitute a radical turning point in my life. These ongoing events have led me to reconsider many of my views on life, God, religion, government, politics, and ultimately my role as a human being here and now on this small planet.

We live in a radically different world than we did before September 11, 2001 and our response with wars in Afghanistan and Iraq, and I am a changed person as a result. These ongoing wars, and the mass death and destruction resulting from them, have led me to more fully comprehend the immorality, cruelty and arbitrariness of violence in general, and particularly the futility of violent retaliation. They have led me to detest violence and reject it completely. These events, for me personally and my generation, are comparable to the massive loss of human life inflicted during the Vietnam War and its profound effect on the moral, ethical, and political beliefs of millions of young people at that time.

A significant part of my response to these horrific events was to learn more about violence, the causes of violence, and alternatives to violence. They also caused me to search deeply within myself and to question my beliefs about life, death, warfare, violence and God.

But it's not easy to get conscientious objector status. Watson's chain of command recommended that his application be rejected, claiming that Watson's statements were vague and that his primary objection is the wars in Iraq and Afghanistan. The decisionmaker rejected the application in a one-page ruling that he "did not present convincing evidence ... that the applicant’s stated beliefs warrant award of [conscientious objector] status."

The district court granted Watson's habeas corpus petition, and the Court of Appeals (Calabresi, Katzmann and McLaughlin) affirms, ruling that there was no basis in fact for the army's rejection of Watson's request, and that the government's rationales on appeal are not convincing.

The U.S. argued, among other things, that the timing of Watson's request -- his residency was ending and active duty was approaching -- was expedient, and that he merely offered a "grab bag of references to various political and religious figures" to justify his opposition to war (including Gandhi, the Dalai Lama and Dr. Martin Luther King, by the way). But timing alone is not enough to reject the application, the Second Circuit says, and Watson was not just opposed to the current wars but all wars in principle. It was those wars that made Watson change his mind about war, but his application did express philosophical opposition to war in general. The Court of Appeals also shot down the government's contemptuous argument that Watson offered a "grab bag" of intellectual sources for his newfound objection to war.

The government also held it against Watson that he had a good lawyer to help him complete the application. There is little case law in the area of testing the sincerity of a conscientious objection, but the Second Circuit does find a case from 1976 that holds "it is impermissible to allow any negative inference about an applicant’s sincerity to be drawn from his attempts to procure legal advice from whatever source.” Goldstein v. Middendorf, 535 F.2d 1339, 1344 (1st Cir. 1976).

As there was no reason to doubt Watson's sincerity in opposing war in principle, the government wrongly denied his conscientious objector application, and Watson wins the case.

Wednesday, June 24, 2009

Botched trial "strategies" overturn criminal conviction

If a tree falls in the woods, does anyone hear it? If a habeas petition is granted but the inmate has already served his sentence, does it matter? The answer is yes.

The case is Wilson v. Mazzuca, decided on June 24. Wilson went to trial on a robbery charge. He was found guilty after a trial. But there were truckloads of problems with the trial, all of them the result of his lawyer's inexplicable strategies. The post-conviction proceedings took so long that Wilson actually served his 9.5 year sentence. But the habeas case is not moot. Wilson gets to clear his name.

What happened at trial? Many things. First, the prosecution's only witness did not show up for trial. When he finally testified, Wilson's lawyer asked him if he was afraid of Wilson. Bad question; the witness said yes, and that he was afraid of "reprisals." Now the jury thinks that Wilson is an intimidating man, precisely the kind of guy who would commit robbery.

Wilson's lawyer also made another mistake; in his opening statement, he attacked the reliability of the police investigation. Now, I don't try criminal cases, so I am not aware that this argument opens the door for the prosecution to show that the crime victim identified Wilson's photograph at the police station. Wilson's lawyer apparently did not know this, either. He learned the hard way when the prosecution asked the victim if he saw Wilson's "mug shot" at the station. This was bad. Mug shots imply guilt.

But it gets worse. The jury gets to see Wilson's photo as seen by the victim. The trial court said there was no way the jury would see the booking plate in the photo (it's the booking plate that makes the mug shot a mug shot). But Wilson's lawyer did not want a redacted photo. He insisted that the jury see the whole photo and nothing but the photo, booking plate and all. Not good for Wilson.

So what happens next? While cross-examining a police officer and detective, Wilson's lawyer "introduced an unredacted arrest report from Wilson's October 1994 arrest, which indicated that Wilson was arrested for 'attempted larceny (extortion), menacing with pipes ... and unlawfully entering a construction site." This was not the arrest report that resulted in this trial; Wilson was on trial for allegedly robbing someone in 1992. So what's going here? That's what the judge wanted to know. He asked Wilson if he really wanted to introduce this document, unredacted. Counsel said he wants it in. At this point, the jury has probably made up its mind. Wilson is vermin.

The judge was not sitting passive as Wilson's counsel was sending his client up the river. The judge put something remarkable on the record:

I am becoming increasingly disturbed and I’m going to put it right on the record, at some of the decisions apparently made by defense in this case and I’m not going to probe defense’s theories, I don’t know what defense has in mind, but I’m going to tell you right here and now, certain questions are being raised in my mind.

I understand that we have retained counsel. But so far, we have had an opening of the door on the investigation. We have had, although that I could see perhaps it was not anticipated but it happened, and it certainly should have been considered before the opening was made. That’s number one.

Number two, we had a questioning of the complaining witness as to why he didn’t come in which he elicited the answers, as much as I tried to delay it or prevent it, that he was afraid to come in, which was disastrous for the defendant.

Then we had the defense putting into evidence, the warrant and order and the ... supporting affirmation by the D.A., which again did not help the defendant.

Then we had several questions today that are going right into areas that I personally, as a defense lawyer, wouldn’t touch with a fifty foot pole.

I even found it necessary on my own motion, just a few minutes ago, to warn the jury not to draw too many conclusions from the mug book.

I have very serious problems with this case right now. The alarm bells are ringing in my head and I’m going right on the record. And the question concerns the representation of the defendant.

I’m sorry, there is no other way I can put it.

Wilson's lawyer forged ahead. He called a character witness for Wilson. The witness said that Wilson was a "role model for young adults." On cross-examination, the character witness admitted that she did not know that Wilson was convicted of drug dealing and that he was also convicted of a committing an armed shakedown at a construction site. And, oh yeah, the character witness did not know that Wilson was convicted of "snatching a gold chain and beating a woman in the face." Wilson's lawyer objected to this cross-examination, but the judge told counsel he should not have opened that door in the first place.

Let's wrap this up. The jury naturally found Wilson guilty. He exhausted his appeals in the state court system, and lost. He brought a habeas corpus action in federal court on the basis that he was denied effective assistance of counsel in violation of the Sixth Amendment. This is a difficult way to overturn a criminal conviction, but as you can imagine, the Court of Appeals (Cabranes, Walker and Raggi) agrees that Wilson got shafted. The Court of Appeals concludes, "none of the five errors identified by Wilson are justified by any strategy that [counsel] set forth at trial or at the July 13, 2005 [habeas corpus] hearing before Magistrate Judge Levy. The record indicates that defense counsel misinterpreted and misunderstood the law, failed to pay attention, acted recklessly, and did not appreciate the consequences of his decisions, even though in many cases he was explicitly warned of the risks by the trial court."

As the Court of Appeals thinks that counsel's deficient performance resulted in Wilson's conviction, particularly since the prosecution's relatively weak case rested entirely on an eyewitness identification made two years before trial, Wilson wins the habeas proceeding, and if the district attorney does not take active steps to re-try Wilson, then the conviction is overturned.

Monday, June 22, 2009

City of Rochester juvenile curfew is unconstitutional

There are many ways to skin the constitutional cat. And there are many ways to analyze crime statistics. All of this surfaced in a recent New York Court of Appeals ruling that struck down the City of Rochester curfew ordinance on constitutional grounds.

The case is Anonymous v. City of Rochester, decided on June 9. With a few exceptions (driving to and from work or school), the City prohibited minors from hanging around without a parent or guardian between the hours of 11:oo p.m. and 5:00 a.m., except that on Fridays and Saturdays they got an extra hour to themselves. The plaintiff challenged this law as a violation of the constitutional freedom of movement, which the Supreme Court recognized during the Warren Court years.

Over the dissent's objection that the highly deferential "rational basis" review governs these laws, the majority opts for "intermediate scrutiny" rather than "strict scrutiny." Under strict scrutiny, the government needs a narrowly-tailored and compelling reason to justify the restriction; few laws survive strict scrutiny. Since the government has more leeway in regulating the behavior of minors, the Court of Appeals applies intermediate scrutiny, which means the city's reason for the law must be substantially related to an important governmental interest. (The Court states the obvious in noting that curfew restrictions would be illegal as applied to adults).

Intermediate scrutiny is not as predictable as rational basis or strict scrutiny, so these cases can go either way. The Court of Appeals finds that the city's justification for the curfew -- to protect minors and prevent juvenile crime -- does not cut the mustard. While public officials emphasized that three minors were killed in the city, they were either not killed during curfew hours or were already subject to a curfew as supervised youthes under the PINS program. Nor does the majority accept the city's crime statistics. While minors are suspects or victims in about 10 percent of the crimes committed during curfew hours, these numbers "really highlight ... that minors are far more likely to commit or be victims of crime outside curfew hours," and that it's the adults and not the children who commit and are the victims of most of the violent crimes. And, while the city relies on studies from other cities about the effects of juvenile curfews, "without support from the City's own empirical data, we conclude that the justifications made by the the Mayor and the Chief of Police for the nighttime curfew, based primarily on opinions, are insufficient."

So that's how intermediate scrutiny works. The court has to think through the justifications and decide if they are substantially related to an important government interest. Who said the courts are not allowed to exercise independent judgment and second guess legislative judgments? The sticky business of intermediate scrutiny is highlighted in dissent, which interprets the statistics differently. As Judge Pigott sees it, it's no surprise that most crimes are committed in the daytime and by adults. More people are active in the daytime, and adults do more of everything than children, and that extends to criminal activity. Moreover, 45 percent of homicides occur during curfew hours. The dissent concludes, "I do not believe that it is the judiciary's place to decide that protecting even a small number of minors from crime is an unimportant objective. I would have thought that protecting children from becoming the victims or perpetrators of violent crime is one of the most important goals a municipality could try to achieve, especially in the wake of a series of nighttime murders or minors."

Thursday, June 18, 2009

No mixed-motive test in age discrimination cases

It's clear that five justices on the Supreme Court do not like the mixed-motive analysis that a different Court in 1989 devised in Price Waterhouse v. Hopkins, 490 U.S. 228. The Court's aversion to Price Waterhouse is evident in Gross v. FBL Financial Services, decided on December 18.

The issue in Gross was whether plaintiffs in age discrimination cases are entitled to a "mixed-motive" instruction if they proffer evidence that age played a motivating role in the adverse decision, i.e., termination or demotion. Under the Price Waterhouse rule, once the plaintiff satisfies his burden in showing that age played at least a motivating factor in the decision, the employer has to prove that it would have made the same decision even without taking age into account. Price Waterhouse was bolstered a few years ago in Desert Palace v. Costa, 539 U.S. 90 (2003), when the Court held that circumstantial (and not just direct) evidence is enough to trigger the Price Waterhouse instruction.

The Price Waterhouse instruction helps plaintiffs at trial, as often more than one reason explains why an employer mistreats the plaintiff. The employer may have been motivated by both illegal (race or gender) reasons and also legal (insubordination) reasons. An illegal motivating factor among many legal reasons is all it takes to win, and while the employer may insist that the plaintiff was fired because of poor job performance, if the Price Waterhouse instruction is given to the jury, the employer has the difficult task of proving that it would have fired the plaintiff even without considering the illegal factor.

The two primary employment discrimination laws are Title VII of the Civil Rights Act of 1964 (prohibiting discrimination because of race, gender, national origin, religion and color) and the Age Discrimination in Employment Act of 1967. The statutes are nearly indistinguishable, and courts routinely apply Title VII standards in evaluating ADEA cases, and vice-versa. What the Supreme Court is telling us in Gross is that the statutes should sometimes interpreted differently. In a footnote, the Court reminds us that it has never definitively held that the well-known McDonnell-Douglas burden shifting scheme applicable under Title VII also applies to ADEA claims. (Notwithstanding that observation, the Courts of Appeal have always assumed otherwise).

A Price Waterhouse instruction is not appropriate in ADEA cases, the 5-4 Supreme Court majority says, because "unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." Rather, the ADEA requires that the plaintiff prove that he was discriminated "because of age." Writing for the majority, Justice Thomas perceives this distinction significant enough to limit the Price Waterhouse rule to Title VII cases. The Court interprets ADEA's "because of" language to mean that "age was the 'reason' that the employer decided to act."

The conservative majority on the Supreme Court does not shy away from distancing itself from precedents that it does not like. They do not care for Price Waterhouse, and they say so directly: "it is far from clear that the Court would have the same approach were it to consider the question today in the first instance." After summarizing Price Waterhouse's deficiencies and the fact that some Courts of Appeal have expressed frustration how that burden-shifting scheme applies in practice, the Court states that "even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims."

In dissent, Justice Stevens notes that Congress endorsed the Price Waterhouse mixed motive theory when it amended Title VII in 1991. He further argues that since Title VII and ADEA employ nearly identical language, Price Waterhouse should apply in ADEA claims also.

Thursday, June 11, 2009

No due process claim for federal inmate typist

Inmates have some rights. Not a lot of rights, but some rights. In this case, though, the inmate who was fired from his job as a clerk typist had no rights at all. At least not under the due process clause.

The case is Johnson v. Rowley, decided on June 11. Johnson was a federal inmate at Otisville, where he worked as a typist for UNICOR, a government corporation that provides work for inmates. One night, after working overtime, he hung around to work on his "rusty" skills, and he sent his wife some examples of his work with different fonts and pitches to show off his progress. This extra work got Johnson fired for engaging in the unauthorized use of facility equipment. He sued under the due process clause.

In order to proceed under the due process clause, you need to show that the government deprived you of a property interest without fair process. A property interest is a legal term of art. Not everything is a property interest. Under Supreme Court precedent, property interests derive from state law, and they consist of "rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." In other words, the property interest must create a legitimate claim of entitlement for the plaintiff.

This legal standard knocks out a lot of due process claims, as unsuccessful plaintiffs try to turn various interests into property interests. Even at-will government employees in the free world do not have a property interest in their jobs. Johnson doesn't have a chance in this context. Even worse for Johnson, the Second Circuit has previously held that inmates in the state prison system do not have a property interest in a particular job assignment, see, Frazier v. Coughlin, 81 F.3d 313 (2d Cir. 1996). This legal principle is contrasted with civil service employees who work for the government -- those employees have a property interest in their jobs. The holding in Frazier is now extended to the principle that federal inmates have no property interest in any job assignment with UNICOR. In other words, Frazier's reasoning now applies in the federal context, consistent with court decisions from around the country on the same issue.

Wednesday, June 10, 2009

Summary judgment reversed in Title VII retaliation claim

You win some and you lose some. In this Title VII retaliation case, the plaintiff wins a little, and he loses a little. Along the way, the Court of Appeals confirms that the definition of "adverse employment action" depends on what kind of case you are bringing.

The case is Cunningham v. New York State Department of Labor, a summary order issued on June 10. Among other things, Cunningham alleged that he was discriminated against because of his race. He also alleged that he was retaliated against for complaining about workplace discrimination, minority hiring practices and a prayer breakfast. The district court granted summary judgment. The Court of Appeals (Cabranes, Winter and Sack) revives the retaliation claim.

The discrimination claim fails because Cunningham cannot show an "adverse employment action." Under Title VII, you can't sue over routine workplace grievances. You can only sue over personnel decisions that materially or significantly affect the workplace. The Court of Appeals reminds us that "everyday workplace grievances, disappointments, and setbacks do not constitute adverse employment actions within the meaning of Title VII." Cunningham tries to get around this by pointing to a series of employment decisions that, taken together, constitute adverse employment action:

(1) “unfounded charges of time abuse”; (2) reassignment from a fifth-floor office to a first-floor office, where plaintiff’s staff was located; (3) opposition by Hines to hiring plaintiff’s son in a summer job; (4) discontinuing a training conference organized by plaintiff; and (5) excluding plaintiff from a “Welfare-to-Work” conference and from a decision to hire an outside consultant.

This is an interesting way around the strict "adverse employment action" test. Each of these events, by itself, is not enough. But are five of these events enough to prove "adverse employment action"? The Court of Appeals says no: "In this case, plaintiffs allegations are—each and together—nothing more than everyday workplace grievances. Because plaintiff’s allegations do not, as a matter of law, amount to a materially adverse change in the terms or conditions of his employment, we affirm summary judgment in favor of defendants on the Title VII discrimination claims."

But Cunningham wins his retaliation appeal. In Title VII retaliation cases, the adverse employment action test is more favorable to the plaintiff. Quoting from Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006), the Court of Appeals states that "In a retaliation claim, '[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.'” The Court of Appeals adds, "a retaliation plaintiff must “present evidence sufficient to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.'”

If you have a retaliation case, being dissuaded from speaking out again is enough to prove "adverse employment action" under Title VII even if the workplace decision that dissuaded you from speaking out again is not enough to bring a discriminatory treatment case. This may be confusing to non-lawyers, but not to the Court of Appeals. In this case, the trial court applied the wrong legal standard. While the trial court applied the "adverse employment action" standard for discrimination cases, it should have applied the "adverse employment action" test for retaliation cases. The case is returned to the trial court to take up this issue under the correct retaliation standard.

Tuesday, June 9, 2009

Churchillian tenacity can get you sanctioned

The Court of Appeals has upheld a $27,000 sanction against an upstate New York attorney who persisted in bringing meritless lawsuits against the state on a discredited legal theory.

The case is Gollomp v. Spitzer, decided on June 8. Gollomp brought a state court action arising from a property dispute. That case got dismissed. He then complained to then-Chief Judge Judith Kaye about corruption in the state judicial system based on his belief that the state court judge who ruled against him was mentally incapacitated and that someone had forged the judge's signature on a court order against him. When that effort failed, Gollomp brought a federal due process action, advancing 22 causes of action as detailed in nearly 500 paragraphs.

The Northern District of New York sanctioned Gollomp's lawyer, who over the years continued to sue the state in federal court despite clear authority under the Eleventh Amendment that the state cannot be sued for damages in federal court. The Northern District concluded that this attorney had not only ignored clear Eleventh Amendment authority in the past, but that he had misled the court about his disciplinary record.

The Court of Appeals affirms. In doing so, it holds that the Office of Court Administration is an arm of the state and that, therefore, lawsuits against OCA are in effect suits against New York. But, as the Supreme Court has long held that damages actions against the state are impermissible under the Eleventh Amendment, the Second Circuit has never squarely held that OCA is an arm of the state and therefore protected under the Eleventh Amendment from a suit like this.

Eleventh Amendment case law will not get too many people excited, but it's important for the reasons outlined in this case. Under the Eleventh Amendment, you have to bring certain suits against state officials in state court, not federal court, where many lawyers prefer to bring their civil rights cases. There is a multi-part test in determining whether an agency is really an arm of the state, but the central question is whether the state will end up paying out the damages award. If the state pays the damages, then the agency is an arm of the state.

The Second Circuit has held in two summary orders that OCA is an arm of the state. Various district courts in New York have held the same. But does this mean the law is clear and that Gollomp's lawyer threw caution to the wind? Summary orders are technically not binding on the lower courts, and district court rulings are not even binding on other district courts. On the other hand, how can OCA be anything other than an arm of the state? Other cases decided by the Second Circuit on "arm of the state" questions may have been someone more difficult calls, such as Woods v. Rondout Valley Central School District, 466 F.3d 232 (2d Cir. 2006) and Gorton v. Gettel, 554 F.3d 60 (2d Cir. 2009), which held that school districts and BOCES are not arms of the state even though they enforce state educational policy. The Court of Appeals does not tell us on what basis Gollomp's lawyer suggests OCA is not an arm of the state, but the Second Circuit deems this an easy question, probably because OCA has "arm of the state" written all over it.

In reviewing the litigation history of Gollomp's attorney, the Court of Appeals finds that he should known that suing OCA in federal court was a frivolous gesture, as he tried that tactic in the past and failed. In a footnote, Judge Cabranes writes,

The relentlessness of plaintiff’s counsel brings to mind the words of Winston Churchill, “never give in, never give in—never, never, never, never—in nothing,
great or small, large or petty—never give in,” only without Churchill’s final caveat, “except to convictions of honour and good sense.” Never give in! The Best of Winston Churchill’s Speeches 307.

The Court also finds that counsel proceeded in bad faith and that the complaint was incomprehensible in places. While the Court of Appeals notes that sanctioning attorneys is an "unpleasant task" and that the judges on this case were all practicing lawyers before they joined the bench, it has no choice but to find that the district court properly sanctioned this attorney. The Court concludes,

For over a decade, the judges of the United States District Court for the Northern District of New York—not to mention our judicial colleagues in the New York Court of Claims, the New York Supreme Court, and the Appellate Division of the Supreme Court—have patiently heard successive lawsuits in which plaintiff’s counsel have asserted the same stale claims against the State of New York. A private litigant forced to defend against similar claims year after year would certainly deserve some protection from the courts against future harassment. The State of New York deserves no less consideration.

Friday, June 5, 2009

All sorts of pretext revive age discrimination case

Without a smoking gun, you are going to need circumstantial evidence to win an employment discrimination case. That's accomplished by casting doubt about the employer's reason for terminating the plaintiff. We call it pretext. And sometimes it's nice to have the various methods of pretext in one case, for easy reference.

The case is Weiss v. JP Morgan, decided on June 5. Weiss claimed age discrimination. The district court granted summary judgment, and the Court of Appeals (Pooler, Hall and Sweet) reversed in an unpublished ruling.

After noting that evidence of pretext is often enough for the plaintiff to win at trial (see, Reeves v. Sanderson Plumbing, 530 U.S. 133, 149 (2000)), the Court of Appeals puts JP Morgan's reason for terminating Weiss on the table before it dissects that reason: after Weiss's sales team complained about his leadership, management decided that the team had lost confidence in Weiss. On its face, this reason is legal. But that's not how the pretext inquiry works. The question really is whether a jury could find that this reason was advanced in bad faith.

Citing DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171 (2d Cir. 1993), the Court notes that "The pretext inquiry may also involve 'factual questions such as whether the asserted reason for the challenged action comports with the defendant’s policies and rules, whether the rule applied to the plaintiff has been applied uniformly, and whether the putative non-discriminatory purpose was stated only after the allegation of discrimination.'” The Court also reminds us that we should carefully scrutinize management's subjective reasons for terminating an older employee. Under Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104-06 (2d Cir. 2001), without that skepticism, "(1) any defendant can respond to a discrimination charge with a claim of some subjective preference or prerogative and, if such assertions are accepted, prevail in virtually every case and (2) a discriminatory consideration such as age could play into the formation of subjective impressions.”

So, while Weiss's team complained about their compensation, management had reason to know that these people often complained about bonuses, and that Weiss was not responsible for the payouts in any event. One witness testified, "in our business everybody always believes that they don't get paid fairly because that's the ... nature of investment banking."

Another way to prove pretext is through evidence that the plaintiff's alleged performance deficiencies were not brought to his attention. This omission suggests that the problem was not that serious and it may even have been a red herring. That's what happened here. Management said that Weiss was fired because he did not cover accounts. But Weiss was not confronted about this problem. He also said that he could have covered accounts if management asked him to, and that he had done it before.

Weiss has even more pretext. Citing Byrnie v. Town of Cromwell, the Court of Appeals says that Weiss was fired "under the abrupt and unusual circumstances suggesting discrimination." First, Weiss was far more qualified for his position than his younger successor, McCann. A high ranking JP Morgan official once announced that Weiss was "the best in the world at what he does." McCann, however, had no prior supervisory experience in the industry, and his job interview did not cover his qualifications. Citing Ash v. Tyson Foods, 546 U.S. 454 (2006), the Court of Appeals notes that "a disparity in qualifications may point to discrimination."

Yet another reason why JP Morgan has offered pretextual reasons for Weiss's termination is that it offered "shifting explanations" for this decision. The Court of Appeals from time to time relies on this theory in holding for employment discrimination plaintiffs, see, Carlton v. Mystic Transportation, 202 F.3d 129, 137 (2d Cir. 2000) and EEOC v. Ethan Allen, 44 F.3d 116, 120 (2d Cir. 1994). Shifting explanations are present in this case as management at one point relied on the justification that Weiss's team needed "change" and his job was eliminated. Not only were these explanations false, but they were quite different from the reason invoked on the motion for summary judgment.

We're not done, though. The Court of Appeals further relies on the "deviation" theory of pretext, which means that if management's decision to terminate the employee deviates from its usual practice or procedures, the jury could find that it cut corners to reach that decision in order to push the employee out the door. That's the rule in Stern v. Columbia College, 131 F.3d 305, 313-14 (2d Cir. 1997). Evidence that management did not give Weiss a chance to improve his performance prior to termination cannot be explained away on a motion for summary judgment; the jury has to decide if departing from that practice in firing Weiss is additional evidence of discrimination.

Finally, there actually was some direct evidence in this case, though it's not really direct evidence of discrimination, but a "stray remark" which by itself is not enough to win. Someone in human resources said that Weiss was not the "positive energized leader" that his department "needs at this time." The Court of Appeals deems this an "oblique" comment. But in the context of all the pretext, this statement takes on a different light and it could be regarded as "a euphemism for youthful."

Thursday, June 4, 2009

Judge Sotomayor and gender stereotyping: a case you may have overlooked

Judge Sonia Sotomayor's nomination to the Supreme Court has acquainted the rest of the world with the Second Circuit. A recent online piece about Judge Sotomayor's jurisprudence has acquainted me with a 2006 court ruling that many of us overlooked.

That article by Emily Bazelon is here. The case is Miller v. City of New York, 177 Fed. Appx. 195 (2d Cir. April 26, 2006). This decision reversed summary judgment in a gender discrimination claim. The reason many of us overlooked this decision was because it was an "unpublished" summary order. Most summary orders simply affirm the district court's ruling. This one reversed summary judgment, and it did so on an interesting legal issue that deserves more attention.

Miller sued under Title VII and Section 1983 after he was forced to resign because of a hostile work environment. He claimed the HWE was based on his gender because a supervisor "made his life at work miserable by claiming that Miller was not a 'real man' or a 'manly man' and by devising work assignments designed 'to toughen [Miller] up." In addition, plaintiff argued that his supervisor "made him perform 'active duty' work because he deviated from 'normal gender stereotypes' according to which men are expected to be muscular and macho."

In allowing this case to go to trial, the Court of Appeals (Sotomayor, Cabranes and Raggi) noted that gender stereotyping violates the civil rights laws under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under that standard, Miller was the victim of stereotyping because management intended to "make a man" out of him and treated him differently because did not confirm to the macho stereotype. The Court of Appeals notes that Miller is "a small, non-muscular man with a disability." On the basis of this stereotype, Miller's supervisor gave him burdensome work assignments which seriously injured his health and forced him to resign. The hostile work environment claim goes to the trial, and summary judgment is reversed.

The Court of Appeals has discretion whether to publish its decisions or not. Published decisions go into the books that line the walls of law offices from coast to coast. Unpublished decisions are available on-line through Westlaw and Lexis. Since unpublished decisions are usually shorter than published decisions, they are also made available in print, though I doubt many lawyers are thumbing through unpublished rulings as they probably assume (correctly in most instances) that they simply resolve conventional legal issues without breaking ground and therefore deserve "summary" treatment. While unpublished decisons can be cited in legal briefs in limited instances, I think it's frowned upon to do so, and as the late Judge Broderick once wrote, "Use of such a citation may be as much a confession of weakness as a sign of strength," Chambers v. TRM Copy Centers Corp., 844 F.Supp. 183, 186 (S.D.N.Y. 1994), rev'd, 43 F.3d 29 (2d Cir. 1994).

Monday, June 1, 2009

Supreme Court strikes down NY law shielding corrections officers from suit

The Supreme Court has struck down as unconstitutional a New York law that requires all lawsuits against state corrections officers to be filed in the state Court of Claims rather than in federal court under the Civil Rights Act. The case is Haywood v. Drown, 2009 WL 1443136, decided on May 26.

Under state Corrections Law sec. 24, any lawsuits against state corrections officers have to be litigated in the Court of Claims, sort of a subset of the state court system, where judges and not juries reach a verdict and procedural rules unique to that court can trip up even the most experienced attorney. If an inmate wants to bring the case against a corrections officer, that attorney would probably turn down the case in the first instance, since unlike civil rights cases brought under 42 U.S.C. sec. 1983, the prevailing plaintiff cannot recover attorneys' fees from the government defendant, and the Court of Claims cannot award punitive damages, either. Since most inmates have no money, it's not worth it for an attorney to bring the case.

As the Supreme Court points out, New York enacted Section 24 of the Corrections Law because state lawmakers believed that most inmate lawsuits against corrections officers are frivolous. That law has been on the books for many years, but someone decided to challenge that law as unconstitutional because it circumvents national policy, as expressed in Section 1983, that civil rights cases can be handled in federal court as well as the state courts which usually have authority to hear civil rights cases.

By a 5-4 majority, the Supreme Court holds that Corrections Law sec. 24 is unconstitutional to the extent it prohibits Section 1983 claims against corrections officers in state and federal court. Under the Constitution's Supremacy Clause, federal law (such as Section 1983) is the law of the land, and it applies to all state courts. The only way that a state can exempt itself from a federal law is by proving that the contrary state law is a neutral rule of judicial administration. This means that a state cannot exempt itself from a federal law out of disagreement with the policies promoted by that law.

Justice Stevens writes that New York violates that rule because it "made the judgment that corrections officers should not be burdened with suits for damages arising out of conduct performed in the scope of their employment. Because it regards these suits as too numerous or too frivolous (or both), the State's longstanding policy has been to shield this narrow class of defendants from liability when sued for damages. The State's policy, whatever its merits, is contrary to Congress' judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages."

By the way, while Corrections Law sec. 24 is primarily associated with inmate lawsuits against officers, that law also prevents other plaintiffs from suing state corrections officers under Section 1983. These other plaintiffs include state employees who sued management over personnel practices. See, e.g., Gore v. Kulhman, 630 N.Y.S.2d 141 (3d Dept. 1995). While the Second Circuit carved out an exception for sexual harassment claims (on the basis that sexual harassment by a corrections officer is not within the scope of his employment), see Ierardi v. Sisco, 119 F.3d 183 (2d Cir. 1997), more routine employment cases were confined to the Court of Claims. That has now changed. Although the Supreme Court does not address this issue, I would assume that all civil rights lawsuits against state Corrections Officers can now be brought under Section 1983, and in federal court.