Circuit upholds religious discrimination injunction against NYC

The Religious Land Use and Institutionalized Persons Act (RLUIPA) makes it illegal for the government to discriminate against religious institutions in zoning decisions. When the Third Church of Christ in Manhattan decided to increase revenue by also using the building for private food catering, it sought an accessory-use permit from the City, which said no. The district court entered a preliminary injunction in the church's favor.

The case is Third Church of Christ v. City of New York, decided on December 1. The problem for the City is that while it said No to the church, it said Yes to non-religious entities (hotels) in the neighborhood who wanted to offer similar catering and event services. We call that discrimination. At least the Second Circuit (Calabresi, Katzmann and Chin) does.

How do we define discrimination? We may know it when we see it, but that formula is not in the statute. Courts have to figure out what it means. RLUIPA is a relatively new statute, and the Second Circuit is still working on it. After summarizing the standards adopted in other Circuits, the Court of Appeals sidesteps "the mechanism for selecting an appropriate secular comparator." Instead, "it suffices for our present purposes that the district court concluded that the Church's and the hotels' catering activities were similarly situated with regard to their legality under New York City law. And so they are."

Here's the reasoning in affirming the injunction against the City: "All three entities are located in the same R-10 residential zone, in the same neighborhood on the Upper East Side of Manhattan. The record establishes, and the City does not contest, that both the Church and the hotels were engaged in large-scale catering activities." While the City tries to distinguish the Church from the hotels that the City treated favorably (i.e., the hotels never sought permission for their catering activities), Judge Calabresi concludes that "RLUIPA ... is less concerned with whether formal differences may be found between religious and non-religious institutions -- they almost always can -- than with whether, in practical terms, secular and religious institutions are treated equally." Score one for practicality.

Court strikes down two-step interrogation

Miranda v. Arizona has been watered down repeatedly by the Supreme Court over the years, but it's still got spunk. The courts are still able to smoke out some the fast ones that law enforcement will pull in trying to get a suspect to make an admissible confession.

The case is United States v. Capers, decided on December 1. Capers worked for the post office, which suspected he was stealing money orders from packages. A sting operation nailed him, and he was brought in for questioning. The investigator began questioning Capers without reading his Miranda rights, including the right to remain silent. Capers admitted the theft. Then Capers was transported to another facility for more questioning. When the investigator, Hoti, began questioning Capers again, he was read his Miranda rights. Foti did not ask the same questions that elicited the prior confession; he instead asked related questions about the theft and again got Capers to make incriminating statements.

This two-step interrogation violated Miranda, as interpreted by the Supreme Court over the years. Now, there are good-faith two-step interrogations and bad-faith ones. The Second Circuit (Pooler, Hall and Trager [D.J.], dissenting) deems this a bad-faith one, citing Missouri v. Seibert, 542 U.S. 600 (2004). The question is whether the two-step was deliberate. For the first time, the Second Circuit holds that the prosecution bears the burden of showing it was not deliberate. Here, it was, because his

“mindset was on, one ... recovering evidence, ... [a]s well as determining if the two of them or if — either both of them or only one of them had any role to play in committing the crime.” Hoti testified that he was concerned about losing the money orders in the “very, very large” facility because the money orders were about the size of a U.S. dollar and the defendants could “toss them, hide them ... [and] [y]ou’d have a real, real tough time finding [them] in this large facility like that with all the packages and other types of mail.” When asked whether he was in a position to read Capers his Miranda warnings before asking him about the money orders, Hoti replied “absolutely.”

This proves bad faith. Judge Hall writes, "There is no exception to Miranda that allows a delay in giving Miranda warnings in order to preserve evanescent evidence. Neither is there an exception to Miranda that permits delaying the warnings in order to ascertain whether a suspected co-conspirator may be entitled to release." Rather, "The only legitimate reason to delay intentionally a Miranda warning until after a custodial interrogation has begun is to protect the safety of the arresting officers or the public -- neither of which was an issue here." Moreover, the court finds that the failure to initially Mirandize Capers was no accident; Hoti was an experienced investigator who underwent Miranda training, and the questioning was not out of the blue but the end result of a lengthy investigation.

JP Morgan Chase prevails in age discrimination case

Catherine Hogan worked at J.P. Morgan Chase Bank. She was let go under the disability leave policy. She sues for age discrimination. She loses in the district court, and the Court of Appeals affirms, ending the case.

The case is Hogan v. J.P. Morgan, a summary order decided on November 30. The Second Circuit (Walker, Raggi and Hall) provides the background:

under Chase’s disability leave policy, an employee who remains on disability leave longer than twelve weeks but less than twenty-six weeks forfeits her job protection rights and can reclaim her old position only if it has not been filled. If the position has been filled, the employee is “eligible to conduct [her] own 60-day internal job search.” Failure to secure another position within the relevant time period, however, results in termination.

This seems a harsh policy, but Hogan did not challenge its legality. The Court of Appeals assumes the policy is legal and says it's a legitimate reason to terminate Hogan. She cannot win the case because there is no evidence that anyone younger than she were hired for the positions she did not obtain in looking for other work in the company, and human resources did not deny her any opportunities within the company for ageist reasons. The disability-leave policy, in other words, was not pretext for age discrimination.

The court drops a footnote referencing the "cat's paw" theory of liability. This is when someone up the chain of command harbors discriminatory intent, affecting the final decision, even if the final decisionmaker is not biased. The Court of Appeals notes that some Circuits have explicitly addressed "cat's paw" and that that the Supreme Court has never taken up the issue. Actually, the Supremes heard oral argument on "cat's paw" a few weeks ago. The Second Circuit says:

we have no occasion to consider the applicability of that theory to the facts of this case. It was not explicitly argued, nor were facts developed to demonstrate a link between evidence of Dennis Chuang’s age-based discriminatory animus and Hogan’s post-illness interview schedule set-up by Nancy Panetta.

Inmate cannot sue jail officials for medical violations

Inmates can sue if jail personnel do not properly handle their sickness and illnesses, but it's not easy. They have to show deliberate indifference to serious medical needs. The Supreme Court said that many years ago. We can talk all day about why it is that inmates do not have the same medical rights as the rest of us, a topic, really, for a law review article.

The case is Goris v. Breslin, a summary order decided on November 30. Boris was incarcerated at Marcy Correctional Facility. He sued over the following medical acts and omissions:

(1) Dr. Thebaud’s refusal to prescribe surgery instead of physical therapy; (2) Dr. Thebaud’s failure to more expeditiously arrange a follow-up with an orthopedist between February and July of 2004; and (3) Dr. Haider-Shah’s refusal to prescribe surgery, or refer Goris to a physical therapist or orthopedist, between August and December of 2004.

These medical decisions might support a medical malpractice action in the civilian context, but they do not show deliberate indifference to Boris's serious medical needs. The Court of Appeals (Feinberg, Parker and Wesley) notes, "Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are serious." The Supreme Court said that in 2004. Courts also consider the actual consequences of the challenged medical decisions.

Goris may be aggrieved, but the Second Circuit concludes that his medical condition was not that serious, and he responded well to physical therapy. In addition, while it may be malpractice for a doctor to fail to refer a patient to a physical therapist over a period of five months, this "is hardly a deprivation 'sufficiently grave' to constitute an Eighth Amendment violation, especially considering that many, if not all, of the exercises that Goris would have conducted at physical therapy he was capable of doing on his own."

A right without a remedy

What's a right without a remedy? Don't ask me. But the plaintiff in a lawsuit against Mount Sinai Hospital in New York City certainly found out.

The case is Cenzon-DeCarlo v. Mt. Sinai Hospital, decided on November 23. Plaintiff is an operating room nurse who signed a form upon employment indicating her unwillingness to perform abortions. Written policy at the hospital allowed her to sign this form as a conscientious objector. Five years later, she was compelled by supervisors to participate in a late-term abortion. When she grieved this, she claims that supervisors then tried to coerce her into assisting in emergency abortions.

You may not know this, but the "Church Amendment," at 42 U.S.C. sec. 300a-7(c), says that certain entities (like Mt. Sinai Hospital) cannot discriminate against health care personnel because she refused to perform or assist in the performance of an abortion on religious or moral grounds. Question: can plaintiff sue over the Hospital's violation of this law?

The answer is no. The statute recognizes Cenzon-DeCarlo's right not to help with abortions, but she has no remedy, i.e., no damages, which means the case is essentially not worth bringing. Not every statute creates a "private right of action," or the right to bring a lawsuit for damages. The title of the statute says, "Individual Rights," but that is not dispositive. While the Supreme Court did observe 30 years ago that the Court had consistently implied a remedy where a right was found, "the Supreme Court's jurisprudence in this area has evolved considerably since then. We are mindful of a more recent instruction from the High Court that 'the judicial task is to ... determine whether a statute displays an intent to create not just a private right but also a private remedy.'" In other words, the Supreme Court has changed. It's not 1980 anymore.

The Court of Appeals (Parker, Wesley and Jones [D.J.]), rules there is no evidence that Congress intended to allow plaintiffs like Cenzon-DeCarlo to recover any remedies for the violation of this law. "While there may be some colorable evidence of intent to infer or recognize an individual right [based on the "Individual Rights" headline), there is no evidence that Congress intended to create a right of action." No right of action means no lawsuit. No lawsuit means no remedies. No remedies means no damages.

Failure-to-promote claim dies on the vine

Failure to promote cases are not easy under Title VII. I think courts give management the benefit of the doubt when it promotes a well-qualified applicant over the plaintiff, who has to show intentional discrimination.

The case is Hamilton v. City of New York, decided on December 3. This is a published opinion as opposed to a non-precedential summary order, which means the Court of Appeals (Walker, Jacobs and Cabranes) does not deem this a routine case. But it does not look like a great case for the plaintiffs, either.

Plaintiffs worked in the New York City crime laboratory, each as a Criminalist III, though they were taking on supervisory responsibilities normally performed by a Criminalist IV. For this reason, their positions were recognized as Criminalist III-Supervisor. When the department wanted to fill two Criminalist IV positions, plaintiffs -- all of them foreign-born -- applied for them. The decisionmaker originally offered one of the positions to an Italian-born male, but he turned it down. The positions went to "the only two white, American-born males of the seven individuals then holding the (informal, but apparently well established) designation of Criminalist III-Supervisor, despite the fact that all four plaintiffs had considerably longer tenures as employees of the crime lab." Now that the Criminalist IV supervisory positions were filled, management decided to strip plaintiffs of their supervisory functions, but they did not lose any salary or benefits.

Plaintiffs' failure-to-promote claims do not survive summary judgment. The Second Circuit holds that plaintiffs cannot overcome the City's articulated reasons for offering the Criminalist IV position to the white applicants. "Defendants point to numerous, legitimate factors supporting their promotion decisions. Regarding the two promotions made in 2005, defendants note that the candidates who were promoted to Criminalist IV positions had uniformly better performance evaluations than the plaintiffs. In addition, [the decisionmaker's] first choice for promotion was Vito Casella, who was born in Italy, thus casting significant doubt on plaintiffs’ implicit claims that O’Neill was prejudiced against foreign-born individuals."

As plaintiffs' performance evaluations were not biased or "manifestly inaccurate," they have no evidence of discrimination. They do bring forward evidence, through their affidavits, that supervisor O’Neill told them that he wanted to “change the face” of the Criminalist III-Supervisor position." This could have discriminatory implications, but the problem for plaintiffs is that they testified at deposition that no one at the Department "had ever made any comments to them that could be interpreted as discriminatory." Since you cannot contradict your deposition testimony with an affidavit in opposition to summary judgment.

The demotion claim also fails. Yes, plaintiffs lost their supervisory responsibilities, but the City had a legitimate reason to do so: with the addition of two Criminalist IV employees, there was no need for plaintiffs to take on those responsibilities. As the Italian-born candidate (who turned down the position) also had his supervisory duties revoked as well, plaintiffs were not singled out.

No constitutional right to state's evidence for DNA testing

Does the U.S. Constitution allow convicted inmates the right to access the State's evidence for DNA testing? The answer used to be Yes. These days, the answer is No.

The case is McKithen v. Brown, decided on November 19. The inmate was convicted of various bad acts, including assault with a knife against his wife. Post-conviction, he wanted to analyze the blood from the knife to show it was not his wife's. This would clear McKithen. The State would not provide that evidence and the State court told him to take a hike. He did, to the Federal courthouse, suing under Section 1983, claiming that denial of this evidence violated the Due Process Clause and other constitutional provisions.

In 2008, Judge Gleeson (Eastern District of New York) ruled in McKithen's favor, "holding that [he] had a procedural due process right to perform forensic DNA testing on the physical evidence the government introduced against him at trial." This stems from the right of meaningful access to the state's mechanisms for post-conviction relief, triggering the state's affirmative duty to disclose evidence for DNA testing. The district court also ruled in his favor on substantive due process grounds. Makes sense, right? Aren't people being released from jail left and right on the strength of DNA testing?

But that ruling from the district court was so 2008, as they say. In 2009, the U.S. Supreme Court took up a similar issue, in District Attorney's Office v. Osborne, 129 S.Ct. 2308 (2009), holding that Osborne was not entitled to DNA evidence in post-conviction proceedings under the Due Process Clause. That ruling "succeeds in toppling the district court's determination that prisoners retain a residual liberty interest in meaningful access to state clemency mechanisms," the Second Circuit (Cabranes, Parker and Underhill [D.J.], rules.

While the Supreme Court did say that "a prisoner may retain a state-created 'liberty interest in demonstrating his innocence with new evidence under state law,'" this is a limited right and "does not entitle a prisoner to all exculpatory evidence, the kind of discovery evidence that a defendant would be entitled to before trial." Convicts only had a limited interest in post-conviction relief, according to the Supreme Court. McKithen argues that CPL sec. 440 (which provides for certain post-conviction DNA testing) must, consistent with the Constitution, allow him access to prove his innocence in state court. This argument will not fly in the wake of the Supreme Court's ruling in Osborne. The Second Circuit holds:

The Osborne Court was clear that the lower federal courts are to defer to the judgment of state legislatures concerning the process due prisoners seeking evidence for their state court post-conviction actions. ... McKithen cannot demonstrate that New York's procedures sink to that level of fundamental inadequacy, and section 440[], even when understood not to require state courts to assume that the DNA testing sought will produce exculpatory results, cannot be said to conflict with the 'traditions and conscience of our people' or 'any recognized principle of fundamental fairness.'"

In other words, we defer to New York's judgment on these issues. The favorable ruling from Eastern District of New York is now vacated on authority of the Supreme Court.

Court stops NYPD from retaliating against officers

If you want to know what the American worker is paranoid, take a look at what happened to police officers working for the City of New York. They agreed to become prominent plaintiffs in a class action against the City, and they found themselves being disciplined over the testimony they gave in that case. The federal courts put a stop to this.

The case is Mullins v. City of New York, decided on November 16. Here's what happened. Over 4,000 police officers sued the city, alleging systematic violations of their overtime rights under Fair Labor Standards Act. To streamline things, the parties agreed that the City would depose a limited number of "test plaintiffs" from various job categories. After those officers gave testimony, the City went after some of them, claiming they gave inconsistent and false testimony in violation of City rules and demanding that they provide Internal Affairs certain work-related documents. The union called the document collection a "raid," and the plaintiffs themselves worried that this was retaliation for bringing the lawsuit. Some of the officers considered backing out of the lawsuit.

District Judge Scheindlin enjoined the City from engaging in this kind of retaliation, and the Court of Appeals (Pooler, Katzmann and Hall) affirms. After ruling for the first time that the trial court may rely on hearsay testimony in resolving preliminary injunction motions, the Second Circuit says the injunction was proper because NYPD's actions after reviewing the deposition transcripts suggest the plaintiffs were victims of retaliation in violation of FLSA. The sequence of events was particularly questionable. After NYPD got the transcripts, Internal Affairs began collecting plaintiffs' work-related documents, an unusual procedure according to the Court of Appeals, since IAB normally does not request documents like this (Administrative Lieutenants or other local officers do).

The City had a defense to the retaliation claims. It argued that the allegations of perjury were time-sensitive, requiring immediate investigations during the pendency of the FLSA case. But this does not hold water. The City requested documents from all the test plaintiffs, not just those suspected of perjury. For one Sergeant, a superior officer attended his deposition even before he was accused of perjury. This was an intimidation tactic. While the City claimed this was a time-sensitive process, justifying immediate review of the officers' work records, in fact, NYPD did nothing for almost a year after it received the deposition transcripts.

So the NYPD's investigations had retaliation written all over it. Since the police officers were able to claim irreparable harm without the injunction (as numerous plaintiffs were going to withdraw from the case to avoid punishment), Judge Scheindlin properly granted the injunction.

A word to the wise on attorneys' fees

The Second Circuit has ruled that attorneys' fees applications should normally be denied in their entirety if the lawyer does not submit contemporaneous time records in support of the request. This ruling re-examines the Second Circuit's seminal attorneys' fees decision, New York State Association for Retarded Children v. Carey, 711 F.2d 1136 (2d Cir. 1983).

The case is Scott v. City of New York, decided on December 1. Any civil rights lawyer who makes a living on attorneys' fees should read this decision. And if they have not already done so, these lawyers must get into the habit of keeping detailed time records on their fee-shifting cases to prevent a potentially catastrophic result: zero attorneys' fees after hundreds of hours of litigation.

This issue arises because the lawyer for New York City police officers, who successfully sued New York City for overtime violations, sought over $2 million in attorneys' fees. He submitted a 96-page attachment to the fee motion reflecting more than 2,000 hours of work. But these were not contemporaneous records. The lawyer acknowledged that "the entries were prepared instead 'by my office working with outside paralegal assistance under my general supervision'" and that "the paralegals based the entries on 'an extensive database of incoming emails maintain by my law firm in a computer folder.'" In other words, the time records in support of the fee application were prepared after the case ended, not contemporaneously. The time entries were also riddled with errors and mistakes.

Based on the Carey precedent, the City argued that counsel should not get any attorneys' fees. Carey does support that argument, stating that "contemporaneous time records are a prerequisite for attorney's fees in this Circuit." Describing contemporaneous time records as a "mandatory requirement," the Court of Appeals in Carey said that "any attorney ... who applies for court-ordered compensation in this Circuit for work done after the date of this opinion must document the application with contemporaneous time records."

The problem is that, later in the opinion, Carey also stated that "all applications for attorneys' fees ... should normally be disallowed unless accompanied by contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done." (Emphasis supplied). This "normally" qualifier suggests that an attorney might sometimes get away with not submitting contemporaneous time records.

In this case, Judge Scheindlin excused plaintiffs' lawyer's failure to submit contemporaneous time records, deciding to give him the "benefit of the doubt" and awarding him $515,000 in fees. That's not good enough for the Second Circuit (Miner, Katzmann and Hall), which remands the case to the district court to better explain itself. The Court of Appeals seems prepared to find that the district court abused its discretion in awarding attorneys' fees. In revisiting Carey, the Second Circuit says now that "Carey establishes a strict rule from which attorneys may deviate only in the rarest of cases." What's a rare case excusing non-contemporaneous fees? Don't ask. Here's what the Second Circuit says:

While we can imagine rare circumstances where an award of fees might be warranted even in the total absence of contemporaneous records — such as where the records were consumed by fire or rendered irretrievable by a computer malfunction before counsel had an opportunity to prepare his application — the circumstances justifying such an exception would have to be found by the awarding court and laid out in sufficient detail to permit review of the justification on appeal.

So it's possible that counsel may get nothing after attaining an excellent result for his clients after years of litigation. A brutal result, to be sure, but not completely out of left field. While Carey foreshadowed this decision, I am sure district courts have made it a practice of giving prevailing lawyers some fees even without contemporaneous time records, by estimating how many hours a reasonable lawyer might have expended on a particular case, and then docking the lawyer a percentage reduction for bad record-keeping. After all, the lawyer must have done some work on the successful case. That model is now behind us. Word to the wise: keep good records and do not take anything for granted.

2nd Circuit gives one to the public employees

Two strands of First Amendment law bob to the surface in this case. The plaintiff worked for Family Court in Onondaga County, where she was asked by an administrative judge to help defeat another Family Court judge's candidacy for State Supreme Court. Plaintiff said she would not "dish dirt" on the judicial candidate. After she said no, plaintiff suffered various indignities in the workplace, including a forced demotion. Does she have a case? Yes.

The case is Morin v. Tormey, decided on November 16. Both sides litigated this issue as if it implicated Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that you have no First Amendment case if your job-related speech arises from your official duties. Garcetti is the kiss of death in public-employee free speech claims, as the courts have interpreted Garcetti to swallow nearly all speech that in some way relates to your job duties. That is particularly the case in the Second Circuit.

But the Court of Appeals says this is not a Garcetti case at all, because unlike the usual Garcetti case, Morin did not express any viewpoints or opinions when she refused to dive into the political sewer with her superiors. Instead, this case implicates a different strand of public employee First Amendment law prohibiting the government from forcing you to engage in political activities. We call these Branti cases, after Branti v. Finkel, 445 U.S. 507 (1980), which prohibits retaliation based on political affiliation (or non-affiliation, as this case shows). Defendants are not entitled to qualified immunity under clearly-established law, i.e., Branti and its progeny.

The Second Circuit also rejects defendants' argument that the "policymaker" exception kills Morin's case. There is such an exception, which holds that high-ranking public employees with discretionary duties can in fact be disciplined and even terminated for refusing to get political. This is a complicated inquiry, as shown by the multi-factor test in Vezzetti v. Pellegrini, 22 F.3d 483 (2d Cir. 1994), a case I read every other day in the 1990's when I handled cases like this. The Vezzetti factors are sweeping, but Morin gets around it because no one would reasonably mistake her for a policymaker, or someone whose inherent job duties allow her to, for example, influence governmental programs or speak publicly on governmental policy. Put another way, party affiliation is not an appropriate requirement for the effective performance of her duties. It's been a while since the Second Circuit dusted off Vezzetti, but it's still good law, and it helps Morin get a trial.

Don't take the law into your own hands

Don't take the law into your own hands. That's true in criminal law, but it's also true in employment law. I'm talking about constructive discharge. A word to the wise: if you bring a constructive discharge claim under Title VII or any other civil rights law, it will probably be dismissed.

The case is Miller v. Praxair, Inc., a summary order decided on November 24. Constructive discharge claims are a subset of employment discrimination claims, which normally require the plaintiff to be fired or demoted (or suffer some other adverse employment action). If the plaintiff quits her job, she can pursue the claim if she was constructive discharged. As the Second Circuit summarizes the standard, "[t]he inquiry is objective: Did the working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign."

That standard may sound workable for someone who quits his horrible job, but the courts rarely uphold constructive discharge claims. The courts do not want plaintiffs to take the law into their own hands. I've seen some strong constructive discharge claims thrown out of court, but this is not one of them. The plaintiff loses because she alleges working conditions that "largely amount to the sort of routine disagreements with supervisors or mild conditions that are simply insufficient to establish the sort of 'intolerable' working conditions necessary to a constructive discharge claim." In addition, after Miller resigned her position, "defendants made repeated attempts to convince her to stay, and, accordingly, no rational trier of fact could conclude that a reasonable person in her position would have felt that her employer deliberately sought to make her working conditions so intolerable that she had no choice but to resign."

Miller also claims she endured a hostile work environment. That claim is dismissed, also. She only comes up with an isolated incident that is not enough to "transform" the workplace. The Second Circuit (Kearse, McLaughlin and Livingston) writes, "Miller's strongest assertion -- that on several occasions defendant John Day referred to the termination of African American employees by saying that we just 'shot' a 'black male' -- is insufficient even if credited because for a hostile work environment to exist, the offending 'incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive."

Pretext-Plus in the Second Circuit: Where It’s Been, Where It’s Going

Plaintiffs’ employment discrimination lawyers in the Second Circuit welcomed the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000). A unanimous Court in Reeves held that, in most employment discrimination cases, the plaintiff may prevail at trial with a prima facie case of discrimination and evidence that the employer’s articulated reason for the adverse employment action was false. The Court framed the issue as follows:

In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact finder is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.” Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

Reeves left open the possibility that, in some cases, even a prima facie case and evidence of pretext may not carry the plaintiff’s burden. But the Court made it clear this was the exception to the rule.

Read the rest of the article (at the New York State Labor and Employment Law Journal)

File your EEOC charge as soon as possible

Why is the statute of limitations in Title VII cases so complicated? Don't ask me. But here's the rule: you have to file a charge of discrimination with the Equal Employment Opportunity Commission within 180 days of the discriminatory practice. But Title VII says that if the discrimination took place in a state with its own human rights agency, you can file the charge of discrimination within 300 days.

If you want to see how the 180-300 day rule can become even more convoluted, read Tewksbury v. Ottaway Newspapers, 192 F.3d 322 (2d Cir. 1999). That case covers the deadlines when the state and federal agencies have a worksharing agreement (New York has one). The courts are still untangling the 180-300 day rule.

The case is Richardson v. Hartford Public Library, a summary order issued on November 9. Richardson filed her EEOC complaint on May 29, 2008. Under Title VII, if your state has its own human rights agency, you have to file with the EEOC within 300 days of the employment decision if you initially filed a charge with the state agency. Under Connecticut law, you have to file with the state agency within 180 days. Richardson did not file anything with the state agency. She went straight to the EEOC, and she did so more than 180 days after the bad employment decision. Under the strict terms of the Connecticut law, she blew the statute of limitations.

Are you still following this? If so, you are a Title VII junkie. The district court in Connecticut dismissed the case as time-barred because Richardson did not file anything with the state agency before running to the EEOC. The Second Circuit (Cabranes, Chin and Underhill [D.J.]) reverses. Under EEOC v. Commercial Office Products, "the 300-day period applies regardless of whether the plaintiff's state law charge was timely, reasoning that a contrary result would 'embroil the EEOC in complicated issues of state law.'" This is good for Richardson. Under Supreme Court and Second Circuit authority, "the 300-day limitations period applies where a plaintiff initially files a Title VII or ADEA discrimination charge with a qualifying state agency, regardless of whether that charge was timely under state law." Richardson's Title VII claim is restored.

Don't tase me, bro!

Ever been tased? I haven't been, and I hope you haven't been, either. Some people in Vermont were tased, and they sued the police under the Fourth Amendment, which prohibits the excessive use of force in arresting people. The Court of Appeals says they cannot sue the police.

The case is Crowell v. Kirkpatrick, a summary order issued on November 15. The plaintiffs were protesting something or other, and they chained themselves to a several hundred pound barrel drum and refused to free themselves. They also summoned other members of their group to return to the property. The police, meanwhile, could not get these people to just go away. The police got what they wanted when the tased the protesters, who were then charged with trespass and resisting arrest.

While cautioning that tasering is not always justified, the Second Circuit (Livingston, Chin and Larimer [D.J.]) rules the Fourth Amendment did not prohibit the police from tasing the plaintiffs. The court says, "because they had chained themselves to the drum, Plaintiffs could not have been arrested and removed from the scene by more conventional means, and the apparently imminent arrival of some number of their compatriots added a degree of urgency to the need to remove Plaintiffs quickly, before the presence of other protesters made that more difficult to accomplish. The officers attempted to use other means to effectuate the arrest, none of which proved feasible, and used the taser only as a last resort, after warning Plaintiffs and giving them a last opportunity to unchain themselves from the barrel and leave the premises peacefully."

The Second Circuit also says the police acted reasonably under the circumstances because they set the taser on "drive stun" mode, which "causes temporary, if significant, pain and no permanent injury." If you Google "drive stun taser," there is no shortage of website and YouTube videos on the practice. It hurts like the devil, and someone in Georgia died from it. Since this case is a summary order, it does not have much precedential value, but I know of few taser cases in the Second Circuit, so for now this case is all the guidance that law enforcement has on the practice.

Pepper-spray in the face may violate Fourth Amendment

'twas a bad night for Patrick Tracy, a fugitive from justice who was pulled over in bad weather and gave the police officer someone else's name. The officer ordered Tracy out of the car, and things went downhill from there, yielding a lawsuit alleging that the officer, Freshwater, used excessive force in restraining him.

The case is Tracy v. Freshwater, decided on October 14. When Tracy slipped on ice after exiting his car, the officer bopped him twice with a metal flashlight. When Tracy then ran toward the police car, Freshwater grabbed him, triggering a struggle, and smacked him again with the flashlight. Tracy then broke free and tried to run away, but he fell to the ground and Freshwater pounced on him and placed him in handcuffs as Tracy was screaming in pain and begged for mercy. Once Tracy was handcuffed, the officer pepper-sprayed him in the face.

So how does all of this shake out? Excessive force claims require the court to consider a series of factors, including the nature and severity of the crime leading to the arrest, whether the suspect posed an immediate threat to the officer, and whether he was actively resisting or evading arrest. The court looks at things from an objective viewpoint: under the facts known the officer, did he reasonably apply force? As the courts love to tell us, "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment."

The Second Circuit (Hall, Livingston and Vitaliano [D.J.]), reverses summary judgment only on the pepper-spray claim, sending it to trial. The other force claims die on the vine. The Court notes that officer Freshwater was in an impossible position: late at night, bad weather, hand-to-hand struggle with a fugitive from justice who was acting furtively. Freshwater had to use force to restrain Tracy. The officer gets the benefit of the doubt on these claims.

But Tracy gets a trial on the pepper-spray claim. As Tracy testified that he was handcuffed and restrained when Freshwater sprayed his face, the jury could find that the pepper-spray lacked any reasonable basis. The Court notes, "infliction of pepper spray on an arrestee has a variety of incapacitating and painful effects, and as such, its use constitutes a significant degree of force. Accordingly, a number of our sister circuits have made clear that it should not be used lightly or gratuitously against an arrestee who is complying with police commands or otherwise poses no immediate threat to the arresting officer." If the jury credits Tracy's testimony that he posed no threat to the officer when he was pepper-sprayed, he can win the case.

The Court also considers whether Tracy can sue for excessive force if his actions that night led to a resisting arrest conviction. Not a bad argument on the surface, except that courts recognize that the police sometimes use too much force even when the suspect is actively resisting arrest. The Court of Appeals doubts whether the criminal jury took up whether the use of pepper spray was reasonable under the circumstances, but it instructs the district court give this issue further thought on remand.

Solving the $75,000 question

State court or Federal court? Where do you want to go? Depends on the case, and it depends on your jurisdiction. In this product liability case, one side wanted State court, the other side wanted Federal. This case will mostly be of interest to lawyers who deal with diversity jurisdiction, as the Second Circuit untangles the $75,000 question.

The case is Moltner v. Starbucks Coffee Co., decided on November 2. Plaintiff bought hot tea at Starbucks, double-cupped and lidded. "She had difficulty removing the lid [to add sugar] and in the course of her attempts to pry it off, the tea spilled onto her left leg and foot. Moltner suffered severe enough burns to require a skin graft. Her hospital stay also occasioned a number of secondary injuries, including bed sores and a fractured sacrum and herniated discs caused by a fall out of bed."

Some cases proceed to Federal court because the plaintiff sues under Federal law. Others make it Federal court under "diversity jurisdiction," where plaintiff and defendant are from different states and the damages exceed $75,000. This case tells us what to do when the Complaint does not specify a damages amount. After the case is filed in State court and it satisfies the diversity jurisdiction requirements, the defendant can remove the case to Federal court within 30 days of service of the complaint.

Moltner's Complaint did not specify any damages. The rules allow you to do this. But when Starbucks removed the case to Federal court more than 30 days after it was served with the case, Moltner objected, preferring State to Federal court. But Moltner cannot have it both ways. It cannot omit the damages amount from the Complaint and then object when the defendant removes the case to Federal court more than 30 days later. Starbucks was allowed to do this so long as it removed the case to Federal court 30 days after Moltner identified the monetary damages in a follow-up pleading produced in litigation. The Second Circuit (Miner, Katzmann and Cote [D.J.]), holds, "the removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought."

Moltner had a creative argument around this rule. Her lawyer argued that, based on the nature of her injuries, Starbucks had to know that her damages exceeded $75,000. But unlike the bright-line rule adopted by the Second Circuit, Moltner's proposed rule is fuzzy. "Requiring a defendant to read the complaint and guess the amount of damages that the plaintiff seeks will create uncertainty and risks increasing the time and money spent on litigation. Under Moltner's approach, if a defendant waits to remove until the damages have been specified, the parties will dispute, upon removal, whether the defendant should have known from the complaint that the jurisdictional threshold was met."

Circuit reinstates defamation claim against MSNBC

You could say that many defamation claims are usually not worth it because the plaintiff wants damages for bad things that were said about him to people who probably weren't listening anyway, or who forgot about it the next day. But if you're a public figure who is defamed publicly, that's usually a different story.

The case is DiFolco v. MSNBC Cable, LLC, decided on October 7. FiFolco was a news anchor, reporter, etc., who signed an employment agreement with the cable network to cover celebrity stuff. Of course, since this is a lawsuit, something went horribly wrong, and she claims that management "conspired to make her life miserable" by canceling her shoots and otherwise harassing her (though I don't see anything about sexual harassment). When she left the station, management made derogatory statements about her to Internet sites and other outlets, saying that she broke her employment contract. Among other things, she sues for defamation.

The Court of Appeals (Miner, Lynch and Trager [D.J.]) holds that the complaint states a claim for defamation because the statements tend to impugn her reputation "in the way of her office, profession or trade." Under New York defamation law, anyone hearing that she broke her employment agreement would think that DiFolco was "unfit to continue her calling."

DeFolco also sued for defamation because someone at MSNBC told media outlets that "she relied on cleavage and makeup to advance her career, ignored directions, refused 'alternate takes,' pouted, and was not a team player." While the district court said she did not have a claim because these statements were matters of opinion (nonactionable under defamation law), the Second Circuit reinstates that claim under the complex but settled New York rule that "opinions based on false facts are actionable ... against a defendant who had knowledge of the falsity or probable falsity of the underlying facts," especially where the "negative characterization ... is coupled with a clear but false implication that the author is privy to facts about the person that are unknown to the general reader."

Criminal defendants cannot kick women off the jury

The trial in Connecticut involved a man accused of sex trafficking. Through peremptory challenges, his lawyer wanted to excuse women from the jury "because he believed that, in light of the nature of the charges, men would be 'fairer' to [defendant] Paris than women." The district court said the Constitution prohibits this. The Second Circuit agrees with the district court.

The case is United States v. Paris, decided on September 17. Like many criminal cases, the facts leading up to the arrest are ugly. The Court of Appeals says, "From at least 1999 until his arrest in 2004, Paris forced or induced teenage girls and young women to engage in sex with men for money. Paris operated his prostitution business in and around Hartford, and recruited his victims to work for him as prostitutes from around Hartford and as far away as New Hampshire." The guilty verdict and lengthy sentence prompted this appeal.

The appeal arising from the presence of female jurors fails. Give the defense lawyer credit. He did not hide his strategy, telling the trial court at the start of jury selection that he wanted a male jury. He said:

[W]omen feel about this case very, very, very differently from men. And ... probably the major factor in how a juror will approach this case is her gender. And having reached that conclusion, I intend to make gender one of the primary -- one of my primary reasons for striking jurors .... I would doubt that I will exercise a peremptory against a male juror. My objective here is to get as many male jurors on the jury as I can, because I think that they will be fairer to Mr. Paris than female jurors will be.

The Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), said that blacks cannot be kept off juries in civil cases. Batson was later extended to criminal case. The Supreme Court after then then said that women cannot be kept off civil juries. The open question in the Second Circuit is whether Batson means that women cannot be kept off criminal juries. The Court of Appeals (Jacobs, Wesley and Chin) says No.

Paris's argument is not as off-the-wall as you might think. Justice O'Connor, the first woman on the Supreme Court, wrote a concurrence in 1994 that said that only the government (and not the defendant) should be prevented from making gender-based jury strikes, reasoning:

We know that like race, gender matters. A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. ... Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case.

That language from Justice O'Conner was not majority language, though. It does not bind the Second Circuit, which rejects Paris's argument and says "discriminatory jury selection harms not just the parties to the case but also the prospective jurors as well as 'the entire community' as it 'undermine[s] public confidence in the fairness of our system of justice.' There is no principled basis for distinguishing between civil and criminal cases for these purposes, or between the exercise of a peremptory strike by the government and a defendant."

Rare anti-arbitration victory in 2d Circuit

A.J. White got a job as a broker with BCG Partners, LLP, in May 2004. When she got the job, she agreed that the employment handbook would govern the terms of her employment. The handbook said that any claims arising from the employment relationship, including discrimination claims, would be resolved at arbitration. The handbook's arbitration provision also said that if the enters into an employment agreement with BCG, "the arbitration of any disputes shall be as set forth in your written employment agreement," and that if that agreement said nothing about arbitrating any disputes, then the handbook arbitration provision would govern.

Less then eight months later, White (who was hired as an at-will employee) entered into another agreement with the company, this one stating that any disputes arising from that agreement would be resolved at arbitration. When White involuntarily resigned her position and sued BCG in court, BCG convinced the federal court to dismiss the case and send it arbitration. The Second Circuit (Leval, Raggi and Gleeson [D.J.]) reverses.

The case is White v. Cantor Fitzgerald, a summary order decided on September 22. The world of arbitration agreements may not make sense to the uninitiated. Who cares if the case goes to court or arbitration? Actually, this is a big deal. Plaintiffs prefer court to arbitration so they can benefit from discovery and a jury. But courts like arbitration agreements because it reduces the burden on the judicial system. Plaintiffs like White will fight like hell just to keep the out of arbitration.

White is able to litigate her discrimination case in court because the only operative arbitration provision is the one she signed eight months after taking the job. The restrictive arbitration provision in the handbook said that it would die off once the employee signs any agreement that contains any new arbitration provisions. When the parties signed that new employment agreement, it contained a new arbitration provision, which killed off the handbook provision. While the new agreement mentioned arbitration, it was only to arbitrate any disputes over that agreement, not discrimination disputes. That may seem a minor difference, but it's enough for the Court of Appeals to say that management walked away from the handbook arbitration that most employers (and courts) love.

Hamptons tragedy yields no speech violation

This case has tragedy written all over it. It winds up in federal court under the First Amendment. You have the sense there was no way the plaintiffs were going to win this one.

The case is DeFabio v. East Hampton Union Free School District, decided on October 13. The facts are straightforward. After an Hispanic high school student died in a motorcycle accident, a rumor spread throughout school that Daniel DeFabio made a racist remark about his classmate's death, "one down, forty thousand to go." DeFabio denied saying this, but many classmates threatened him, prompting the school to remove him from classes for his own protection. DeFabio wanted to return to school to let everyone know that he had actually said in the wake of the motorcycle death that he was upset to hear someone else make the insensitive remark, and that his statement was therefore taken out of context. But the school refused to read his side of the story over the loudspeaker during morning announcements, fearing that it would further aggravate tensions. Meanwhile, the police had to patrol outside DeFabio's house for a week because the principal heard about threats to burn the house down.

DeFabio sues under the First Amendment over the school's refusal to let him defend himself to his classmates. The theory is that DeFabio went through hell because classmates did not hear his side of the story. He loses the case on summary judgment.

Two legal principles are at play here. First, under the Supreme Court's well-known Tinker case, the school cannot silence students unless they reasonably believe that the speech would materially disrupt the educational process. Second, public officials are immune from suit if their actions were objectively reasonable under the circumstances. Both standards tend to give school authorities the benefit of the doubt.

The Court of Appeals (Leval, Hall and Parker) says "[t]here is no question that Daniel's mere presence in the school, with or without his speech, would likely result in violence or the threat of violence and would therefore 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.'" While DeFabio also wanted school officials to read his statement over the loudspeaker, the Second Circuit grants them immunity on that First Amendment claim as well, concluding that officials reasonably thought this gesture would have only further confused and angered students who did not believe DeFabio.

"Class of One" lives!

All men are created equal. Thomas Jefferson said that. So did the Equal Protection Clause. The Supreme Court then said that you have an equal protection case if the government singles you out for no rational basis. That was Willowbrook v. Olech, 528 U.S. 562 (2000). Two years ago, the Roberts Court scaled back the Olech case in Engquist v. Department of Agriculture, 553 U.S. 591 (2008), ruling that these so called "class of one" claims must fail if you are challenging discretionary governmental decisionmaking, employment decisions in particular. "Class of one" claims are at a crossroads.

The case is Analytical Diagnostic Labs v. Kusel, decided on October 4. Suing the government, which had aggressively investigated its operations, the Lab invoked Olech. You can't blame the Lab. We had high hopes for Class of One cases after the Supreme Court issued Olech in 2000. That case involved a municipal zoning decision where a property owner was singled out for no rational basis. But in Engquist, the Supreme Court limited the reach of Olech in holding that Class of One cases cannot apply in the employment context, where government employers have discretion to make workplace decisions. Central to Engquist was governmental discretion. As the Second Circuit notes, "such state action does not violate the Equal Protection Clause 'when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.' ... 'This principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized.'"

So, how far does Engquist go? Does it mean that no one can bring a Class of One case in challenging discretionary governmental decisionmaking? Some courts have read Engquist that way, sharply limiting the Class of One remedy, since so much governmental decisionmaking is discretionary. But the Second Circuit (Pooler, Calabresi and Chin) won't go that far. Class of One claims under Olech can challenge some discretionary acts. "We join the Seventh Circuit in holding that Engquist does not bar all class-of-one claims involving discretionary state action. While there may be some circumstances where Engquist is properly applied outside the employment context, the case before us is not one of them. Critically, the state defendants exercised the state's regulatory power," Judge Pooler writes.

Since the Supreme Court in Engquist said that there is a crucial difference "between the government exercising the power to regulate or license, as lawmaker, and the government acting as proprietor, to manage its internal operations," and the government has more leeway in dealing with employees than the citizens at large, the Second Circuit will not chop the head off Class of One claims that easily.

None of this helps the plaintiff in this case, however. The Lab cannot win because it cannot show that the government's investigatory practices were applied to the Lab differently from other laboratories, which were not comparable. There is no disparate treatment, which means that the Lab cannot bring a Class of One claim.

Stony Brook doctor has a free speech claim

Dr. Krukenkamp was not afraid to speak his mind while employed by the Stony Brook University Medical Center, a public facility on Long Island. He gave interviews to the newspaper criticizing the Center's pediatric program and discussing the Department of Health's investigation into that program. Unlike most First Amendment retaliation cases, the issue is not whether he spoke out on a matter of public concern and therefore engaged in protected speech. Instead, the issue is whether defendants' retaliation was significant enough to support a lawsuit.

The case is Krukenkamp v. SUNY Stony Brook, a summary order decided on October 6. Laypeople and clients will say they "got screwed" after speaking out. Lawyers and judges call it an "adverse employment action." The former phrase makes sense to most of us, but the legal system prefers the latter, clunky, phrase.

If you speak out as a public employee and get screwed over, you have an "adverse employment action" if management's retaliation would deter any reasonable employee from speaking out again. In other words, if the retaliation would have a chilling effect on future speech. This is a lenient standard for plaintiffs, and the Court of Appeals (Pooler, Hall and Kravitz [D.J.]) reverses summary judgment on that basis.

First, the doctor has a case because defendants placed him on inactive clinical status, preventing him from performing surgery. Second, when he was on call, defendants referred fewer patients to him after he spoke out. Third, the Center took his name off the "Find a Doctor" website shortly after he spoke out, a move that made it more difficult for him to find new patients and work elsewhere. These are not trivial acts of retaliation, the Court of Appeals says. (The court does say that one retaliatory act -- seating him on a small stool next to the garbage during a meeting -- is too trivial to support a damages claim).

Interesting side-note to the case. Generally, if the adverse employment action takes place six months after the free speech, that's too attenuated a causal connection between the speech and the retaliation to support a claim. Courts prefer a tighter connection, i.e., no more than a few months. One way around this is to show that defendants waited for the right moment to retaliate. Here, the Second Circuit says defendants "waited six months for an opportune time to take the most visible adverse acts, when Dr. Krukenkamp was scheduled to go on Title F leave." Authority for this holding is found in Espinal v. Goord, 558 F.3d 119 (2d Cir. 2008), a prisoners' rights case, not an employment case. The Second Circuit extends that case to the employment context.

What happens when a workfare recipient wins the lottery?

Under New York law, anyone who received public assistance over the last 10 years has to give some of his lottery winnings to the state as reimbursement for these benefits. I know there are many New Yorkers who think this is a good idea. But this case exposes a potential flaw in the process.

The case is Carver v. City of New York, decided on September 23. Carver was in the workfare program, which means he had to work various jobs for the City from 1993 through 2000. He was paid the equivalent of minimum wage in cash and public assistance. When he won the lottery, the State intercepted some of his winnings (in the amount of $5,000) and sent the money to New York City. This money was credited against the public assistance that Carter received in the workfare program.

Can you spot the flaw in the lottery payback law? Carter sued, claiming that the law violated the Fair Labor Standards Act, which says you have to be paid minimum wage for your work. If the state takes some of the lottery winnings to recoup what it paid you in workfare benefits, then, minus the lottery take-back, you actually worked for less than minimum wage during the workfare period. Interesting lawsuit, but we do not know for the moment if the lottery take-back law violates FLSA. The Court of Appeals sends the case back to the trial court for that issue after ruling that Carter has standing to bring the lawsuit.

Standing issues are not as interesting as the clash between FLSA minimum wage and the lottery take-back law. But without standing to bring the case, Carter will never get an answer to the more interesting question. Although (for some reason) Carter did not sue New York State in this case, instead only suing the City of New York which was reimbursed through the intercepted lottery winnings, over a dissent from Judge Winter, the Second Circuit (Jacobs, Walker) rules that the City is a proper defendant because he Carver claims the City was supposed to pay him minimum wage during workfare and that the City violated minimum wage laws in requiring him to pay back some of the wages in the event he won the lottery. "On this theory, Carver was directly injured by the City's alleged failure to abide by state and federal labor when compensating him for this work." In addition, since the City indirectly caused the interception of Carver's lottery prize in requiring him to pay back part of his benefits if he won the lottery. However tangentially, the City is at least partly on the hook for this potential minimum wage violation, which allows Carver to proceed against the City in this lawsuit.

Conviction upheld after excited utterance at police station

Shortly after a fatal shooting in New York City, one of the survivors (Pierre-Louis) saw the defendant, Richardson, at the police station and immediately shouted out that Richardson was the killer. This was not during a police lineup but, instead, Richardson and the other defendants were standing around in handcuffs. At more formal line-ups, Pierre Louis again identified Richardson as the killer. The question in this habeas corpus action is whether Richardson's conviction was the product of an "unduly suggestive" lineup?

The case is Richardson v. Superintendent of Mid-Orange Correctional Facility, decided on September 20. A few principles need to be clarified here. Many defendants are convicted after the jury hears that the crime victim picked the defendant at a police-lineup, which means that the lineups cannot be unduly suggestive, or the result of a police set-up. However, you cannot win a federal habeas corpus petition unless the state courts that affirmed the conviction unreasonably applied settled constitutional law. While Richardson won his habeas petition at the federal trial court, the Second Circuit Jacobs, Lynch and Restani [D.J.]), reverses, and Richardson's conviction stands.

Under the 1996 habeas corpus law, since the Supreme Court has never addressed any case quite like this one, the state courts have some leeway in interpreting the Constitution on their own in resolving this habeas action. So that even though a federal judge ruled in Richardson's favor on the suggestive lineup, that ruling is tossed out because the state court's ruling was not "unreasonable" (even if many federal judges are more experienced in applying the Constitution than state judges). The police station identification (when a very tall Richardson and other defendants were standing around in handcuffs) was not an unduly suggestive but, instead, an "accidental, unarranged viewing." No one told Pierre-Louis that Richardson was a suspect when Pierre-Louis saw him at the station house, and it is not unusual to see people in handcuffs there. As the Second Circuit notes, "every Supreme Court case addressing the suggestiveness of pretrial identifications in the due process context has involved police-conducted identification procedures."

I know what you're thinking. Richardson's fate was sealed precisely when Pierre-Louis shouted out, "He did it!" upon seeing Richardson. What the Court of Appeals is saying is that this was not quite a police-lineup, although it did in the end serve the same purpose. The Court of Appeals says, "while the police could have been more careful in coordinating the placement of the suspects and the arrival of the witnesses, it is too much of a stretch to say that the circumstances of Pierre-Louis's initial viewing are equivalent to 'the practice of showing suspects singly to persons for the purpose of identification' that 'has been widely condemned.'"

One last point. The Second Circuit has to also decide if the police station identification is sufficiently reliable to support Richardson's conviction. It was. One of the reasons for this is that another shooting victim (Ruiz) nearly jumped off his gurney and yelled at Richardson when Richardson presented to Ruiz in the hospital emergency room. This, and the fact that Richardson was at the crime scene, makes the spontaneous police-station identification all the more reliable.

Anti-religion vanity plate rule violates First Amendment

The Court of Appeals has struck down as unconstitutional the State of Vermont's scheme for issuing vanity license plates, ruling that it restricts religious expression in violation of the First Amendment.

The case is Byrne v. Rutledge, decided on October 8. Vanity plates generate a lot of money for the state because people are willing to pay a fee to broadcast their personalities to the world. In Vermont, there are limits to what your license plate can say, among them any combination of letters and numbers that would refer to a religion or deity. Apparatchiks in the Department of Motor Vehicles scrutinize the vanity applications to see if the plate is objectively or subjectively religious, which means that along with "JESUSLUVSU," a plate that means nothing to the average viewer is prohibited if the applicant wants it for religious reasons, or if DMV decides on its own that it has religious significance.

Even under the deferential nonpublic forum standard, this is process is not viewpoint neutral, and it therefore violates the First Amendment, the Court of Appeals (Livingston, Kearse and Raggi) holds, allowing Byrne to proceed with his plate that would read, JN36TN, another way of saying John 3:16. Under Supreme Court authority, "speech discussing otherwise permissible subjects cannot be excluded ... on the ground that the subject is discussed from a religious viewpoint." Since Vermont lets motorists put all sorts of philosophical messages on their license plates (such as CARP DM and PEACE2U) except for those expressing a religious philosophy or viewpoint, that exception violates the First Amendment.

The state also loses the case on a different ground: the rejection of Byrne's license plate is not reasonable because of the crazy way that it grants and denies applications. "[T]he state generally adopts the motorist's supplied meaning rather than the plate's objective meaning and, as a result, will (1) approve plates that, to the general public, appear to contain overt religious references simply because the motorist supplied a personal, secular meaning, and (2) deny applications for combinations that are objectively meaningless to third-party observers on the grounds that a registrant ascribes a personal religious meaning to the proposed plate." By way of example, the Court says, the state offers no rationale for how or why a presumably religious GENESIS plate will not distract other motorists or risk the public perception that the government is sponsoring a religious message simply because the driver is honoring his favorite rock group rather than the Old Testament.

The election lockbox is legal

New York Election Law contains all kinds of arcane provisions that people challenge in court. One of them is the lockbox. But you can take this to the bank: the lockbox is legal.

The case is Van Allen v. Cuomo, decided on September 17. The lockbox is shorthand for the Election Law rule that says you cannot change your party enrollment within 25 days of the election. This is to prevent "party raiding," when voters enroll with the opposing party to influence or determine the results of a primary election.

Van Allen challenged this time limitation under the Equal Protection Clause after he was told he could not change his party enrollment from "non-enrolled" to the Independence Party at the last minute. The Supreme Court actually resolved this issue in Rosario v. Rockefeller, 410 U.S. 752 (1973), ruling that the delay provision did not violate the right to vote since they still enjoyed the electoral franchise and could have changed their party affiliation earlier.

While the right to vote is fundamental, that does not mean that every restriction is unconstitutional. The courts will uphold "evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Like everything else in constitutional law, this is a balancing test. Van Allen loses because the state's interest in discouraging party raiding and encouraging the participation of new voters outweighs Van Allen's interest in registering with the party of his choice only a few weeks before the election. The Second Circuit (Calabresi, McLaughlin and Livingston) do not think it too much a burden for Van Allen to register earlier in complying with a modest timing requirement. The Court of Appeals has too much class to really tell us what's going on here: if you want to change political parties, get off your duff and do it earlier.

Life's not fair, and neither is the due process clause

The due process clause is all about fairness. If the government wants to deprive you of a property or liberty interest, it has to do so fairly. Easier said than done. The courts have interpreted the due process clause in a way that balances the rights of the individual with the government's interest in efficiency. You are entitled to be heard before the government makes its decision, but the government has a lot of leeway.

The case is Faghri v. University of Connecticut, decided on September 17. Faghri lost his First Amendment retaliation claim, described here. He also brought a due process claim because the public college took away his position as Dean of the School of Engineering after, inter alia, his colleagues complained about him. Assuming he has a property interest in the position, his due process rights are minimal, and he loses the case.

The Second Circuit (Leval, Hall and Murtha [D.J.]) notes that while due process entitles you to notice and a hearing prior to the deprivation, that does not mean you get a full-blown evidentiary hearing with a court reporter and neutral judge. The Court says that "the requisite hearing is a minimal one, designed to serve as an initial check against mistaken decisions. It need not be conducted before a neutral decisionmaker, and it is not intended to resolve the propriety of the discharge, but to ensure there are reasonable grounds to find the charges against the employee are true and would support his termination." However, when the plaintiff is demoted and not terminated, his due process rights are even more limited. Here is the crux of the Second Circuit's decision, which affords management significant leeway in efficiently disciplining managers like Faghri:

Faghri (who was not terminated, but merely demoted) received oral notice of the university’s intent to remove him from the deanship, a brief explanation of the university’s evidence, and an opportunity to be heard. Nicholls summoned him to a face-to-face meeting and told him the university’s reason. Faghri had the opportunity in that meeting and immediately afterward to respond. As a sophisticated actor holding a prominent position in the university hierarchy, Faghri was well-equipped and well-positioned to make use of that opportunity. Any significant delay to afford Faghri more time to construct a response, during which time he would remain in his position, would have been detrimental to the university’s interest in its efficient governance. Faghri furthermore did not request additional time to mount a defense or present explanations. No clearly established constitutional law required the university to provide additional predeprivation process to such a management and policymaking employee in these circumstances.

Large menorah on City property does not violate Establishment Clause

A state appellate court has held that the City of Poughkeepsie could place an 18-foot menorah in the downtown business district near a Christmas tree and a display of the Muslim faith. But the court also holds that the City cannot use public money and labor for the nightly menorah lighting.

The case is Chabad of Mid-Hudson Valley v. City of Poughkeepsie, decided by the Appellate Division, Second Department, on August 31. You don't see too many Establishment Clause cases filed in state court, particularly in Dutchess County. These cases are usually brought in federal court.

This Section 1983 action involves the overly complex questions of whether the public display of religious symbols and lights violates the separation of church and state. The City wins on the claim that placing the large menorah on public property violates the First Amendment. Under the Supreme Court's crazy quilt of Establishment Clause legal standards, the plaintiff has to show that the menorah represented an endorsement of religion.

In context, the menorah does not represent such an endorsement because the public sidewalk location is in front of a privately-owned building and also near the Civic Center Plaza, also privately-owned. While the menorah is quite large, "it is set against the 'neutralizing secular background' of the five-story, commercial, and privately owned Barney Building. The City also wins the case because garlands, wreaths and white lights are nearby. Although these decorations go up for the Christmas season, believe it or not, the Supreme Court has held that these things, like Christmas trees, "typify the secular celebration of Christmas." Further negating any inference that the government is endorsing the Jewish holiday is the presence of a display of the Muslim faith in the form of a star and crescent. This is the kind of "big picture" analysis that favors the government in Establishment Clause cases.

But the City loses on a secondary claim. It is not allowed to use public money and employees for the nightly menorah lighting, even if private actors reimburse the City for these expenses. This fosters "the perception of an unconstitutional excessive government entanglement with religion."

Wiretapping in the iPhone age

So this is how people treat each other in the modern age. This case arises from a wills and estates dispute. Various family members, including in-laws, were visiting a dying mother. They met in the kitchen to discuss their different intentions about mom's will. For strategic advantage, someone tape-recorded someone else on an iPhone without his knowledge.

The case is Caro v. Weintraub, decided on August 13. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 makes it illegal to wiretap or record an oral communication for the purpose of committing a crime or a tort. The guy who was taped can sue the taper.

Caro cannot sue family member Weintraub. The Second Circuit (Cabranes, Wesley and Livingston) agrees that Caro is a "party" to the communication under the statute even though others were in the room. But in order to proceed with his case against Weintraub, Caro has to show that the conversation was intercepted "for the purpose of committing any criminal or tortious act." Here's the dilemma for the Second Circuit:

whether Title III requires that the claimant assert that the recording occurred with a separate and independent tortious intent, or whether the necessary tortious intent can be inferred from the act of recording itself. In other words, must a plaintiff plead that the defendant had intent to use the illicit recording to commit a tort beyond the act of recording illicitly or may the defendant merely have the intent to record and that alone is sufficient?

Other Circuits have taken up this issue. They have all held that the defendant must intend to use the illicit recording to commit a tort or a crime beyond the act of recording itself, such as blackmail or some other harmful act. The secret recording itself is not the requisite tort or crime. The Second Circuit adopts that view and therefore holds that Caro cannot sue Weintraub. While Caro argues that the independent tort was the violation of his privacy rights under Connecticut law, unfortunately for Caro, state privacy law does not reach that far. The closest privacy interest that Caro might assert is the "invasion of privacy by intrusion upon the seclusion of another." But Connecticut law recognizes no such right. Caro cannot sue Weintraub under Title III.

Due process cases are not fun anymore

Due process claims are not what they used to be. Back in the 1970s, a very different Supreme Court was breathing life into the due process clause with new rulings that clarified when and how the government could fairly take away your property and liberty interests. People called it the due process revolution. But it's not 1973 anymore.

The case is Chase Group Alliance LLC v. City of New York, decided on September 14. Here is the problem with due process cases. Due process is all about the right to be heard before the government takes your property or liberty interest. But few lawsuits are allowed to proceed under the due process clause because there is usually a built-in mechanism for you to be heard when you're about to lose the property interest. In other words, the due process clause today is enforced through laws and regulations that the government has to follow before it takes your property. The lawsuit is often dismissed because, by that point, you already had your due process. The lawsuit is redundant.

This case shows us how it works. The plaintiff owns properties in New York City. The tenants complained to the city about housing code violations. The City Housing Court has various procedures to follow. Among other things, an administrator is assigned to oversee the dispute, and he has authority to collect and use rents to remedy the code violations by, for example, ordering supplies and labor. The administrator can also take out a loan for this work, and that loan would place a lien on the property. This is where the plaintiff objected under the due process clause. The landlords claim that the administrator deprived them of their property interest without due process when he took out a loan in excess of $700,000, all of which the City deemed as a lien against the property. The landlords sued in federal court, claiming this lien violated due process.

The case cannot get out of the starting gate. It is dismissed under Rule 12(b)(6). The administrator cannot take out those loans and place the lien on the property without a state-court order. That court order cannot issue without notice to the landlord. Due process is nothing more than notice and an opportunity to be heard before your property is taken away. The landlords got due process long before the lawsuit was filed. They got due process when the state court issued the procedure that allowed the landlords an opportunity to be heard. As the Court of Appeals (Winter, Walker and Pooler) sums up, "It is hard to conceive of a remedy more attuned to appellants' claim than a court order preventing the imposition of a lien without a notice, hearing, and court approval. Indeed, such an order is much of the relief they seek in the present action. The Housing Court order, therefore, provided all the process that was constitutionally due at pertinent times." So plaintiffs got their due process, built into the initial lien process. That means they cannot sue under Section 1983 for relief in federal court. This is why due process cases aren't fun anymore.

Even criminals have constitutional rights

When a federal judge in Albany gave Warren Green supervised release that prohibited him from wearing street gang colors, he sued under the due process clause because that requirement was vague. He wins the case.

The case is U.S. v. Green, decided on August 13. The defendant is no angel, that's for sure. He went to jail as a cocaine dealer and was then caught in jail with drugs. He was given an additional sentence and then supervised release that said he could not associate with any street gangs or wear certain colors. Here's the actual court order: "The defendant shall not associate with any member or associate of the Bloods street gang, or any other criminal street gang, in person by mail (including email), or by telephone. this shall include the wearing of colors, insignia, or obtaining tattoos or burn marks (including branding and scars) relative to these gangs."

Even criminals have rights. Who knows where the twists and turns of constitutional doctrine will take us? The Constitution is complex, with nuances that are sometimes counterintuitive. You could argue that somewhere along the line we took a wrong turn at Alberquerque, so that some inmates have more constitutional rights than the police officers who arrested them. That's a function of the many legal tests governing the First Amendment, but the inmate/police officer paradox is another story.

It was legal for the district court to prohibit Green from associating with street gangs. But the restrictions against certain colors, tattoos, etc., are too vague to satisfy the due process clause, which requires precise clarity to ensure that the defendant is not tripped up accidently. The Second Circuit (Pooler, Katzmann and Livingston) says:

The range of possible gang colors is vast and indeterminate. For example, the L.A. Police Department’s explanation of gang colors and clothing includes “white T-shirts,” “blue or black or a combination of the two,” red, green, black, brown and purple. ... Eliminating such a broad swath of clothing colors would make his daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition.

UConn gadfly has no free speech claim

The Court of Appeals has dismissed a First Amendment claim filed by a high-ranking public employee who spoke out against his public university's policies, holding that his employer's interest in efficient management outweighs the plaintiff's right to speak out on matters of public concern.

The case is Faghri v. University of Connecticut, decided on September 17. Faghri was Dean of the School of Engineering. He became an outspoken critic of many of the university's policies, and the Second Circuit (Leval, Hall and Murtha [D.J.]) give us the laundry list. For example, he publicly objected to the university's plans to establish a regional campus in Dubai, and he opposed plans to close out the university's School of Family Studies and other programs. He also accused the university of mismanaging funds. Six categories of public objections in all. Faghri was a gadfly. The college probably thought he was a pain in the ass. It made him resign his deanship, but he retained his teaching position.

In 1968, the Supreme Court held in Pickering v. Board of Education that public employers can discipline subordinates who speak out on matters of public concern if the speech in some way disrupted workplace or governmental efficiency. We call this Pickering balancing. Faghri falls victim to Pickering balancing. The Court of Appeals rules that "because the deanship of the School of Engineering is an executive, policymaking position, the management of the university was entitled to have such a position occupied by one who voiced support for, or at least did not voice opposition to, the university's policies. It was therefore entitled to remove Faghri from that position for publicly opposing the university policies." In other words, while the man on the street can say these things, and Faghri can even say these things in his capacity as professor without fear of retribution, his managerial position restricts what he can say under Pickering.

This is not the first time the Second Circuit has rejected speech claims by high-ranking public employees in this context, but it's been a while since we saw a case like this. The mid-1990s saw a few such cases, including McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997), and Faghri's case ties this doctrine together in a fairly bright-line way. Managerial employees in the public sector had better get with the program and put a lid on it if they want to avoid discipline. Their free speech rights rest on a very thin reed at this point.

Maybe you do have a right to own a chuka stick

More than a year ago, the Second Circuit rejected the argument that the Second Amendment affords you the right to own a chuka stick. In summarizing that decision, I headlined the blog post, "You have no right to own a chuka stick." That was before the Supreme Court breathed life into the Second Amendment.

The case is Maloney v. Cuomo, decided on August 13 by summary order. As I wrote in January 2009, "A chuka stick (also known as a nunchakus) is a crude weapon that 'consist[s] of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking. At least that's how the New York Penal Law defines it." The Court of Appeals rejected Maloney's case because, at the time, the Second Amendment did not apply against the States, only the Federal government.

In McDonald v. Chicago, the Supreme Court ruled in June 2010 that the Second Amendment does apply to the States. Maloney had the foresight to file a petition for Supreme Court review after he lost in the Second Circuit. When the Supreme Court issued its ruling in McDonald, Maloney rode that wave. The Supreme Court granted Maloney's petition for the purposes of immediately sending it back to the Second Circuit. The Court of Appeals now sends it to the trial court without analysis. So maybe we really do have a right to own a chuka stick.

We trust the jury on "joint employer" question

It's been said that you can only have one master. This means you have only one employer. But that's not really true. Under the labor laws, you can sue joint employers that are not bound by any official relationship so long as, among other things, the second company also controls your labor. This why many plaintiffs suing for minimum wage and overtime violations name more than one employer as defendants. The more the merrier.

The case is Zheng v. Liberty Apparel Company, decided on August 10. The case reaches the Court of Appeals because 25 Chinese garment workers prevailed at trial in alleging that their actual employer -- Lai Huen Yam -- and a joint employer -- Liberty Apparel -- basically ripped them off and denied them proper compensation. Liberty delivered partially-finished clothes to Yam's factory in Chinatown, and plaintiffs would finish the clothes by sewing the fabrics together and adding buttons, labels, cuffs and hems. The Liberty company regularly sent quality control people over to Yam's factory to supervise plaintiff's work. So, while Yam was technically plaintiff's official employer, it was as if they also worked for Liberty.

Liberty Apparel claims on appeal that the jury should not have decided whether Liberty was a joint employer, and that only the trial court should have made that decision. This is actually a mixed question of law and fact, as we apply the legal standard to a particular set of facts. Having lost at trial, this point was really one of Liberty's last non-frivolous arguments before they have to pay up in this protracted litigation. The Second Circuit (Jacobs, Parker and Hall) trusts the jury on these issues and affirms the verdict:

FLSA claims typically involve complex mixed questions of fact and law ... The jury’s role was to apply the facts bearing on the multi-factor joint employment inquiry to the legal definition of joint employer, as that term had been (properly) defined by the district court in the jury charge. “[M]ixed questions [of law and fact] are ‘especially well-suited for jury determination ...’”

While Liberty argued that the trial court should have given the jury a special verdict form "so that the jury could detail its factual findings regarding the various joint employment factors, and so that the district court could then have applied those findings to make the final determination as to joint employment," that would "distort" the jury's role of applying facts to law and, in any event, "appellate courts rarely--if ever--vacate for failure to use a special verdict form."