This is what sexual harassment looks like

In a ruling that implores trial courts to take an expansive view of the evidence on a summary judgment motion, the Court of Appeals has reinstated a hostile work environment case in which substantial harassment was not motivated by sexual desire but a general hostility toward women.

The case is Kaytor v. Electric Boat Corp., decided on June 29. This case provides a good primer on the state of sexual harassment law in the Second Circuit, with scholarly discussion of recent cases and a broad view of what constitutes relevant evidence in these cases. The Court (Kearse, Hall and Cabranes) also provides a ringing endorsement against summary judgment in these cases, reminding us that the totality of the evidence, and not piecemeal consideration of isolated incidents, governs the inquiry. The jury is not required to believe all the employer's evidence, and the district court need not trust "innocent explanations for innocent strands of evidence."

The hostile work environment in this case seems extensive, making you wonder how summary judgment was granted in the first place. Kaytor's supervisor, McCarthy, made sexually suggestive comments about her body, her clothing and the way she smelled, and he leered at her. He made inappropriate comments when Kaytor went to a gynecologist appointment, stating, among other things, that the doctor was going where men would love to go. McCarthy insulted Kaytor's body when she spurned his advances, and on many occasions he actually said he'd like to see her dead and in a coffin. He also threatened to kill Kaytor if she complained about the harassment. These death comments, along with a sexually-suggestive gift, make this case particularly notable.

Ladies and gentlemen, this all amounts to a hostile work environment. The Circuit reminds us that sexual harassment exists even without explicitly sexual conduct, and that hostility toward women also proves these claims. Sex-neutral actions may contribute to the hostile environment under Title VII if the same individual "engaged in multiple acts of harassment, some overtly sexual and some not." Summarizing this approach, the Second Circuit says, "so long as there is some evidentiary basis for inferring that facially sex-neutral incidents were motivated by the plaintiff's gender, the ultimate question of whether such abuse was 'because of' the plaintiff's gender ... is a question of fact for the factfinder."

This case goes to trial on the sexual harassment claim. First, the district court should not have ignored how McCarthy demeaned other women in the office besides Kaytor. In addition, while threats to kill and choke plaintiff were facially gender-neutral, the jury may find McCarthy said this because of her gender, since he seems to have only directed these threats toward women. In any event, the Court notes that the jury could find the threatening comments were gender-motivated even if McCarthy did say them to men and women alike. Moreover, while Kaytor could not say exactly how many times McCarthy threatened her, it is enough for her to say at trial that "there were many such instances." Whether that recollection is good enough for the jury is a credibility question and not dispositive on a summary judgment motion. And, although the district court said that the harassment was too sporadic since it took place over the course of "a number of years," this was another example of viewing the evidence most favorably to the employer, a no-no on motions for summary judgment. Looking at the evidence from a different angle, the harassment was far more numerous when we take into account the quite frequent (more than 15) threats, body leering and frequent comments about Kaytor's body, including her genitalia.

Every sexual harassment case has some evidence that you never saw before. In this case, in addition to the death threats, it's the pussy willow gift that McCarthy gave to Kaytor. Of course, management argued that this plant was a gender-neutral gift. But the Court of Appeals sees this stunt through the eyes of a jury that has mulled over all the other evidence in the case. McCarthy had made other inappropriate comments about plaintiff's genitalia, and even a junior high school student would know how the pussy willow gift fits into the case. At this stage of the case, we may assume that the pussy willow gift was another form of sexual harassment.

Inmate loses under PLRA's "three strikes" rule

The Prison Litigation Reform Act of 1996 made it more difficult for inmates to bring federal lawsuits if their prior actions were deemed meritless. They can proceed in forma pauperis, i.e., without paying the filing fee if they cannot afford it, but under the "three strikes" provision, three bogus lawsuits means you're paying your way to litigate any future cases. Twelve years after Congress enacted PLRA, the courts are still untangling its meaning.

The case is Harris v. City of New York, decided on June 2. Harris claimed in this case that Rikers prison guards assaulted him and ruptured his eardrum. He was denied in forma pauperis status and therefore had to pay filing fees because the district court found that Harris had four strikes on his record. By this time, however, Harris had been released from prison. So, does the three-strikes rule apply to prisoners who are back on the streets?

Let's look at this from Harris's point of view. If PLRA was intended to discourage frivolous lawsuits by inmates, why should its restrictions apply when the inmate is no longer in jail? PLRA reigns in the litigation tactics of inmates, not the rest of us.

This argument will not fly. PLRA says that "in no event shall a prisoner bring a civil action ... under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal ... that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." The law says that the inmate may not bring an action if on three prior occasions he brought a meritless suit. "Bring" is written in the present tense. Doesn't matter if the inmate got out of jail after he brought the lawsuit. What matters is what he did while in jail. The Second Circuit (Katzmann, Leval and Parker) concludes, "Because Harris was a prisoner at the time he 'brought' the present action, the text of the statute mandates that the three strikes rule apply."

The only silver lining for Harris is that if he chooses to re-file his case, he can still avoid paying the filing fee if he can prove his entitlement to in forma pauperis status. This is because now that Harris is no longer in jail, the PLRA does not apply to him anymore, and the three-strikes rule does not apply to him anymore.

Some tragedies have no federal remedy

The Harrington family certainly went through hell and back. Their son was killed in a head-on car accident in Brookhaven, Long Island. They sued the Suffolk County Police Department, alleging that law enforcement's investigation into the accident was so deficient as to violate the due process clause.

The case is Harrington v. County of Suffolk, decided on June 4. As the Court of Appeals (Cabranes, Katzmann and Chin) tells us, the lawsuit claims that "the investigation that followed was inadequate in a number of respects. First, because of heavy rain, the responding officers allegedly conducted their investigation from a nearby diner rather than thoroughly combing the scene of the accident for evidence. Plaintiffs also allege that defendants, among other things, (1) failed to ascertain whether Guillaume had been under the influence of drugs or alcohol at the time of the accident, (2) failed to obtain a toxicology report, (3) failed to indicate in the police report that Guillaume was uninsured, and (4) improperly attributed the accident to weather conditions."

So is this a federal case? In order to have a claim under the due process clause, you need to show that the government denied a property or liberty interest without due process. The family says the property interest here is "receiving adequate police services" and a "proper and adequate investigation of the accident."

This is not a federal case. While property interests derive from a legitimate entitlement to state-created understandings or rules, that entitlement must be concrete and unique to the plaintiff/victim. It is not enough to show that the police department requires its officers to protect the community and enforce all laws and ordinances. Some discretion is inherent in all police work, and that discretion takes cases like this out of the due process universe. And the Supreme Court held in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) that “the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its ‘substantive’ manifestations.”

Get this man an attorney!

I've seen my share of resourceful jailhouse lawyers, but there's no substitute for a lawyer who knows what he's doing. That's why the Second Circuit maintains a pro bono program, where lawyers volunteer their time to work on interesting cases. Not every pro se case warrants assignment from the pro bono panel, but this prisoners' rights case does.

The case is Johnston v. Genessee County Sheriff, decided on May 21. Johnson's in the slammer, and I mean the slammer, i.e., solitary confinement. He claims that his detention violated the Constitution because he was subjected to excessive force and the jail did not provide him a hearing prior to his confinement to fairly determine if he violated any jailhouse rules (we call this a "pre-deprivation hearing").

Johnson does not have a case unless he was a pre-trial detainee at the time of his confinement. Pre-trial detainees are not yet guilty of anything; they are in jail maybe because they cannot make bail and are otherwise waiting for trial on the charges that got them arrested. Since they are not yet guilty, pre-trial detainees have more rights than convicts. Pre-trial detainees also have greater rights not to be beaten up in jail.

This is one of the rare cases that outlines the factors relevant to the appointment of pro bono counsel. The case has to be legally sophisticated enough to justify assigning the plaintiff a lawyer. On one hand, the Court knows that a lawyer's time is precious. On the other hand, the Court notes, "counsel will be in a far better position to assist the litigant and the court than will the judge who chooses to struggle with an unlearned and sometimes barely literate prisoner."

The Court of Appeals (Pooler, Parker and Jacobs) is not sure if Johnson was a pre-trial detainee. Since this threshold issue makes all the difference, the Court of Appeals decides he is entitled to pro bono counsel for the purposes of determining if Johnson had any rights under the Constitution. If he did, then pro bono counsel will develop the sophisticated legal arguments concerning whether the confinement was serious enough to warrant a hearing before Johnson was placed into solitary. If Johnson was not a pre-trial detainee, then pro bono counsel's appointment is discontinued.

Hearsay exceptions allow plaintiff to argue that obesity is a protected disability

Hearsay is a tricky thing. That's why evidence class in law school spends so much time on it. Here's a real-life example of how hearsay works, and the Court of Appeals provides that analysis in an interesting disability discrimination claim alleging that obesity is a protected disability under the New York City Human Rights Law.

The case is Speigel v. Schulmann, decided on May 6. (The case is also notable for holding that the Americans With Disabilities Act does not provide for individual liability in retaliation claims).

Speigel argues that he was fired from a karate school because of his weight. Defendant says that Speigel was fired because of job performance. This is the classic dispute in employment discrimination cases. You can get around management's defense with direct evidence of discriminatory intent. Speigel has it, but the district court threw out the case under the hearsay rules.

The first hearsay issue looks like an easy one. Spiegel testified that Schulmann told him that he was fired because of his weight. In dismissing this case on summary judgment, the district court somehow overlooked this evidence. Since Schulmann has an ownership interest in the business and he's a party to the lawsuit, it's a party-opponent admission under Rule 801(d)(2)(A) of the Federal Rules of Evidence.

The other hearsay problem is that Spiegel testified that Vincent Gravina, the leader of the Center at the time of plaintiff's termination, told him that the termination was based on his weight. The district court said this was inadmissible hearsay, but it isn't, the Court of Appeals (Hall and Livingston) says. Gravina and Schulmann were co-owners of the corporation that owned the school. According to plaintiff, Gravina said he was told to fire him because of his weight. That's enough for the Court of Appeals to find that plaintiff can win the case:

The relationship between Gravina and Schulmann, as well as Schulmann's direction to another center's owner to fire Spiegel, creates the inference that Gravina was acting as Schulmann's agent or servant when he told Spiegel that the termination was based on Spiegel's weight. If this inference is drawn in the Plaintiff's favor, Spiegel's description of Gravina's statement is admissible against Schulmann as the statement of his agent or servant, made during the existence of the relationship between Gravina and Schulmann.

The final tricky issue here is whether obesity is a protected disability under the New York City Human Rights Law. The Americans With Disabilities Act and New York State Human Rights Law does not protect plaintiff. But courts are beginning to recognize that the New York City Human Rights Law provides broader protections to employees than the Federal and State counterpart. This issue is sent back to the district court to think it over light of the broad definition of "disability" under that law and the New York City Council's intent that "analysis [of NYCHRL provisions] must be targeted to understanding and fulfilling what the statute characterizes as the City HRL’s ‘uniquely broad and remedial’ purposes, which go beyond those of counterpart State or federal civil rights laws.”

Garcetti snags another whistleblower claim

To put it mildly, things changed after the Supreme Court issued Garcetti v. Ceballos, 547 U.S. 410 (2006), holding that the First Amendment does not protect public employee speech or whistleblowing if the speech is made pursuant to the plaintiff's "official duties." The lower courts are now grappling with the meaning of "official duties speech," and cases that would have gone to trial only a few years ago are now being dismissed.

The case is Drolett v. DeMarco, a summary order decided on June 16. Drolett was a police officer in Town of East Windsor, Connecticut. Management had in place a "chain of command" dictating how the officers were to raise their concerns about the department. Drolett did not follow that chain of command when he sent an anonymous letter to the local police commission criticizing the department's personnel and other practices. An example of Drolett's criticisms is the following statement: "Many shifts are without supervisors or even experienced officers because some people are not required to work their scheduled shifts. They are even handed the opportunity to get off them." Management eventually figured out that Drolett had written the letter and it disciplined him for this speech, triggering this First Amendment lawsuit.

Pre-Garcetti, Drolett's letter raised matters of public concern. The district court certainly thought so, denying the summary judgment motion on that ground. The district court also held that Garcetti did not compel dismissal of this case because it was not clear whether Drolett's speech was pursuant to his official duties. The district court reasoned, "there is no evidence that Drolett's official duties included complaining about all kinds of workplace mismanagement, whatever the context in which those complaints were made." In particular, the in-house speech rules did not compel Drolett to make complaints; he was only permitted to do so. For plaintiffs' lawyers in the Second Circuit, this was not a bad ruling from the district court in that it provided language that would allow them to get around Garcetti's holding. The district court's ruling on this issue is now a nullity.

Unhappy with this ruling, the Town filed an interlocutory appeal on qualified immunity grounds. You can take up an early appeal if the law was not clearly-established and defendant therefore did not know for sure that it was violating plaintiff's constitutional liberties.

In a summary order, the Court of Appeals rejects the district court's analysis and dismisses the complaint, at least as to the individual defendants who asserted qualified immunity. The Court (Cabranes, Hall and Raggi) reasons as follows:

[T]hough Drolett had a duty to raise his concerns about the management of the police department within the chain of command, he did not do so. Instead, he raised his concerns outside the chain of command. Had Drolett raised his concerns within the chain of command, that speech likely would have been made 'pursuant to his official duties,' and therefore not protected by the First Amendment. The courts have yet to consider whether speech that would not enjoy First Amendment protection if made pursuant to an official duty can claim such protection when made in violation of that duty. We therefore conclude that even if the actions of defendants did violate Drolett's First Amendment rights, those rights were not clearly established at the time of the discipline. Accordingly, we conclude that defendants are entitled to qualified immunity.

The ruling by the Court of Appeals is short and does not tell us the underlying facts. For that you have to read the district court opinion, which places this case in context. The takeaway is that the First Amendment may not protect you from discipline if you speak out of turn at work on important public matters. Based on language in the Garcetti decision, there was a view among Garcetti litigators that speech outside the workplace that related to official duties may get around Garcetti. That argument seems to be impliedly rejected by the Second Circuit. The Circuit further rejects the district court's view that factual disputes exist as to whether Drolett blew the whistle pursuant to his official duties. In reaching this finding, the Court of Appeals impliedly rejects another court ruling (cited in the district court's analysis) that plaintiff's lawyers cite from time to time, Kodrea v. City of Kokomo, 458 F. Supp. 2d 857 (S.D. Ind. 2007). The Second Circuit also treats as a unique issue (sufficient to confer immunity among defendants) whether speaking outside the chain-of-command constitutes a clearly defined act of free speech.

Trial tip: preserve your objections

Cases are won or lost at trial. Appeals are much harder to win after you've lost at trial. If you want to win the appeal, you had better preserve your objection. Otherwise, spend the $455 appellate filing fee on something else.

The case is Tirreno v, Mott, a summary order decided on April 30. This case took forever to reach the Second Circuit, for some reason. The jury verdict was in December 2007. More than two years later, the Second Circuit gets the case. Plaintiffs claimed that the municipal defendants effected an unreasonable search and seizure in violation of the Fourth Amendment. The argument on appeal is that the trial court did not instruct the jury that the defendant has the burden of showing that plaintiffs consented to the search.

There is no dispute that the plaintiffs did not object to the disputed jury instruction. This means they have to prove "plain error" on appeal, a much harder standard of review, amost impossible. It's not possible here. It can't be plain error because the law is not even clear that one party or the other has to prove at trial that the plaintiff did not consent to the search. In Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991), the Second Circuit rejected the argument that the defendant bears that burden. But the Court of Appeals may have reached a contrary holding in Anobile v. Pelligrino, 303 F.3d 107 (2d Cir. 2002).

The tension between these two cases will have to be untangled on some other day. For now, it's enough for the Court of Appeals (Raggi and Hall) to say that it cannot be "plain error" for the trial court to reject plaintiff's instruction on this issue without an objection at trial, particularly since the trial court engaged the parties in a thoughtful discussion about the jury charge during trial, and this issue did not even come up.

This is a good time to say that trials are not just about the facts. They are about the law. Some lawyers go into trial focused on the facts, and they take a cursory view on the law. But the jury instructions are important, and some juries go over the instructions with a fine-tooth comb, particularly if the judge gives the jury a copy of the instructions. When the judge holds the charge conference to talk about the jury instructions with counsel, grab your research folder and ask the court to conform the charge to your liking. The court may reject your argument, but that will give you a fighting chance on appeal if you lose the case.

Police misconduct case is reinstated for trial

Many, many false arrest cases are dismissed because the police have probable cause to take the plaintiff into custody. If it's a close call, the officer gets qualified immunity because the arrest was objectively reasonable at the time, even if in hindsight the arrest was a bad idea. Some of these cases, actually survive a motion to dismiss, though.

The case is Williams v. Wood, a summary order decided on April 29. Williams was driving around in a car with someone else when the car stopped in front of a group of people by a house where drugs and a gun was recently found. Williams got out of the car and briefly spoke to these loiterers and then got back into the car. Does this sequence give the police arguable probable cause to arrest Williams?

As the record now stands, the answer is no, and the district court should not have dismissed the case on summary judgment. The arresting officer did not know that Williams actually spoke to the people hanging around the house; he only saw Williams "get into a vehicle in the vicinity of a house where drugs and a shotgun had been found thirteen days earlier." In fact, a case from 2005 has even "worse" factual allegations than this case and that case was not worthy of dismissal, either. That case, U.S. v. Swindle, 407 F.3d 562 (2d Cir. 2005), involved a man who drove up to a known drug house, entered the house, left a short time later and drove away. That sequence of events did not give rise to probable cause. If the Swindle case was not enough, then it's not enough here.

The Court of Appeals (Leval, Katzmann and Parker) also reinstates Williams' excessive force claim. The arresting officer says that Williams mouthed off to him and would not make his right hand visible, justifying the use of force. Williams denies it all. In addition, even if the use of force did not injure Williams, he can still proceed with that claim.

Officer's threat to kill inmate may give him a day in court

I've represented prisoners who really loved the law library. They become experts in constitutional law, challenging their convictions and the conditions of their confinement. But there are procedural roadblocks to these cases. Inmates have to satisfy certain procedural requirements before going into court, particularly when they want to sue over prison conditions.

The case is Benjamin v. Commissioner of Correctional Department, a summary order decided on April 29. This case is notable because a pro se inmate defeats the State Attorney General's office. Benjamin certainly knows his way around the prison law library.

If you want to sue over prison conditions, under the Prison Litigation Reform Act, you have to first file a grievance. After the grievance is undoubtedly rejected by prison officials, you can then sue in court. There are exceptions to this rule, i.e., if the prison makes it impossible for you to file a grievance, or you have good reason to fear retaliation for filing the grievance. That's the rule in Hemphill v. Goord, 380 F.3d 680 (2d Cir. 2004).

Benjamin claims that an officer threatened to kill him if he complained about him. That's right, officer O'Conner threatened Benjamin with death. Plaintiff testified that the officer said, "I will kill you if you complain about me." Let me ask you: is this alleged threat enough to deter an inmate from filing a grievance?

The Court of Appeals (Leval, Katzmann and Parker) says the threat might constitute sufficient justification for Benjamin's failure to file a grievance. In dismissing the case for Benjamin's failure to exhaust administrative remedies, the district court seems to have overlooked this allegation. The Court of Appeals is remanding the case so the district court can give it another look.

Isolated sex-talk does not save untimely hostile work environment claim

The Supreme Court in 2002 opened the door a little wider for sexual harassment plaintiffs when it decided that, even if much of the hostile work environment took place outside the statute of limitations, a case is timely brought if the hostile work environment continued into the 300-day window from which the victim must file an EEOC charge. The question now is what kind of "timely" sexual harassment is enough to make the otherwise untimely events actionable.

The case is McGullam v. Cedar Graphics, Inc., decided on June 15. McGullam worked in the production department, where the men were pigs and said a number of sexist and offensive comments about her. She was then transferred (at her request) to the estimating department in the other side of the building. Surrounded by new co-workers, the harassment died down in the estimating department, except that McGullam had to put up with a male co-worker who talked about other women (he called them "chickies" and talked about sexual "sleep-overs") with male colleagues. After McGullam was fired, she brought an EEOC charge alleging she endured an hostile work environment.

This is how McGullam describes the guy in the estimating department:

While working in the estimating department, I was away from the majority of the harassment, hostility and aggravation. However, all comments of a sexual and derogatory nature did not cease entirely. On the opposite side of my cubic[le]wall was a salesman . . . [who] carried on numerous lengthy conversations with male buddies and made frequent comments about women such as referring to them as “chickies[.”] He also remarked that “[i]f it wasn’t going to be a sleep-over, she wasn’t worth the trip[,”] regarding a woman friend that he was involved with (translating to: she’s only worth the trip if I’ll be getting sex). This was a thoroughly demeaning comment regarding women.

The EEOC charge is a precursor to a federal Title VII lawsuit. In New York, the EEOC charge has to be filed within 300 days of the discriminatory act. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court said that since sexual harassment usually takes place over time, the case is timely (and all the sexual harassment is actionable for damages) if at least some of the harassment took place within the 300-day period.

All the harassment in the production department is long behind us, so the offensive statements in the estimating department are the only way to salvage the sexual harassment lawsuit (only those statements took place in the 300-day period). But they are not enough. First, the Court of Appeals (Jacobs, Kearse and Calabresi) says that "the chickies comments are too trivial to contribute to a Title VII hostile work environment claim. They were not obscene or lewd, or even sexually suggestive."

That leaves us with the "sleep-over" comments. But, drawing from the Supreme Court's Morgan precedent, these comments are not sufficiently related to the sexist comments in the production department, since they were uttered by someone in the estimating department. In addition, unlike the sex-talk in the production department, the sleep-over comments were not about McGullam but someone else and therefore had no relation to the hostile work environment in the production department. The sleep-over comment also took place nearly a year after McGullam left the production department.

Since the chickies and sleep-over statements are not sufficiently offensive or related to the sex-talk in the production department, the only way McGullam can win the case is if the sleep-over talk by itself creates an hostile work environment. It does not, because it is not severe or pervasive enough to alter the conditions of her employment. What this means for McGullam is that there is nothing left for her to sue over. Summary judgment is affirmed.

Sanctions reduced because of defendants' ad hominem attacks

A pro se plaintiff alleging copyright violations was hit with a sanction for pursuing frivolous litigation in claiming that someone stole her screenplay. The Court of Appeals vacates that sanction because of some particularly uncivil conduct by the lawyers representing the defendant.

The case is Bauer v. Yellin, a summary order issued on May 3. Summary orders do not tell us everything that happened in the case, but it seems that Bauer claimed that defendants stole her idea for a script. The district court dismissed the case on the merits and also granted defendants attorneys' fees as a sanction for Bauer's utterly meritless claim. The Second Circuit (Sack, Raggi and Hall) says, in part, "'A Rose is a Rose is a Rose,' Bauer's script about the relationship between Gertrude Stein and Alice B. Toklas, and 'The Hive,' defendants' script about five male artists living in a Paris tenement, were so obviously different that no reasonable juror could conclude that they contained similarities probative of copying."

Appellate courts will defer to the lower court's finding that the litigation is frivolous and deserves sanctions. But the Court of Appeals does something that I have never seen before: it sends the case back to the district court to reconsider the sanctions because defendants' written submissions to that court were full of ad hominem, or personal, attacks "not relevant or helpful to the court's expeditious resolution of the dispute, which attacks necessarily augmented the fee demand."

Here are the attacks against plaintiff. The Second Circuit is concerned that these attacks affected the sanction, most likely in that the attorneys' fees to which defendants are entitled increased as a result of the work that defendants performed in assaulting plaintiff's character:

“Ms. Bauer’s [May 21 letter to the Court] is of a kind with her reckless initiation and malicious prosecution of her baseless lawsuit, namely it is tainted by her dishonesty, deviousness, and disingenuousness.”

• “Ms. Bauer’s shameless begging for the sympathy of the court on the grounds that she is a pro se litigant ‘in over her head’ is a devious attempt to avoid the consequences of her arrogant disregard of three unequivocal Orders of the Court.”

• “Every minute this case remains undismissed by you is an affront to the legal system and due process. We insist on meeting face-to-face IMMEDIATELY, as ordered, to explain to you why you have no case, why you are likely to be assessed our client’s attorneys’ fees, and why you should be held in contempt. You ignore our demand and the Court Order at your great peril. You are right only about one thing, you are in ‘way over your head.’”

• “Your refusal to meet up to NOW after you have had the ample opportunity to confirm that you have NO CASE is a violation of the May 2 Order for which we will seek sanctions including DISMISSAL, CONTEMPT, and the AWARD OF DEFENDANTS’ ATTORNEY’S FEES.”

• “Ms. Bauer has pursued this case blindly, recklessly, vindictively, maliciously and without a shred of evidence to support her wild and deluded claim of copyright infringement. . . . Ms. Bauer’s opposition papers mirror the nasty, mean-spirited approach she has taken in prosecuting this matter.”

Pretty nasty stuff. These attacks are taken from either defendants' briefs or their emails to plaintiff. Courts don't like this kind of ad hominem attack on other litigants, especially pro se litigants. The sanction is vacated for reconsideration at the district court. The Second Circuit instructs the lower court "to reduce the total fee by deleting amounts incurred in mounting ad hominem attacks."

Police surveillance records remain under wraps in RNC protest case

When New York City got to host the Republican National Convention in 2004, the police department began preparing for possible political disturbances, mindful that the City is a terrorist target and other major political events around the country (like the 1999 World Trade Organization meetings in Seattle) attracted anarchists. So the City began researching potential extremist groups and actually infiltrated political organizations to see if anyone planned to disrupt the Convention. That surveillance is the subject of an extraordinary ruling from the Court of Appeals on the discoverability of police records memorializing that undercover work.

The case is In Re City of New York (Dinler v. City of New York), decided on June 9. New York Civil Liberties Union, suing the City over arrests and other police actions relating to the 2004 Convention, did get 600 pages of "User End Reports" that describe the results of this surveillance. But NYCLU also wanted the Field Reports prepared by the undercover officers. The City said no, the district court said yes, and the Court of Appeals (Cabranes, Wesley and Livingston) authorized an emergency appeal in reversing the district court and keeping the intelligence reports under wraps pursuant to the "law enforcement privilege."

The Second Circuit finds that this case qualifies for the rare interlocutory appeal in order to settle a novel discovery issue of monumental importance. One reason for this is that the usual "attorneys' eyes only" release of this discovery does not always prevent public leaks which wind up in the newspaper. Filing under seal is also risky, as sensitive information from cases around the country in different contexts has also been inadvertently released through computer glitches at the courthouses. Indeed, Judge Cabranes sheepishly notes that in 2007, the Second Circuit itself had to publicly redact information from one of its cases about the FBI's "allegedly aggressive interrogation techniques" that led to a false 9/11 confession. (This blog broke that story).

Turning to the merits of the law enforcement privilege, the Second Circuit says NYCLU can't have the records. Borrowing from legal standards adopted by courts around the country, the Second Circuit says the documents qualify for the privilege because they contain information that would compromise confidential police sources and techniques. Against the "pretty strong presumption against lifting the privilege," the plaintiffs do not have "compelling need" for the Field Reports, particularly since the Second Circuit reviewed them in camera and concludes that they do not contradict the already-released End User Reports. The Court of Appeals further concludes that the plaintiffs' need for the Field Reports "certainly does not outweigh the public's substantial interest in nondisclosure as a means to preserve the integrity of the NYPD's undercover operations."

At the close of the ruling, the Court provides a "how to" guide for dealing with the law enforcement privilege in the future. The objecting party must show that the records contain information that the privilege is intended to protect, i.e., police techniques and procedures. If the police meet that test, the court balances the public interest in nondisclosure against the plaintiff's need for the records. But the presumption is against disclosure at this point. The district court has to review the records in camera, bearing in mind that "some documents may be so sensitive that they should not be left in a judge's chambers overnight." If the court decides to pierce the privilege, it may order their release in a specified way, such as under seal or on an "attorneys' eyes only" basis.

The First Amendment ain't what it used to be

The old gray mare ain't what she used to be, and neither is the First Amendment, at least when it comes to the speech of public employees. A few years ago, Joseph Paola would have a case for retaliatory treatment under the First Amendment. Not anymore.

The case is Paola v. Spada, a summary order decided on April 16. Paola was a Connecticut State Trooper assigned to the Office of the Fire Marshall. He made oral and written complaints to Internal Affairs about his supervisor's alleged mismanagement and potential unlawful conduct. The general rule is that public employees cannot suffer retaliation for speaking out on matters of public concern, broadly interpreted by the courts to mean any matter of interest to the public, and not merely a personal grievance. Now, prior to 2006, the Second Circuit certainly would have held that Paola's complaints were matters of public concern. Any number of cases held that mismanagement and potentially unlawful conduct at a public institution (a law enforcement agency in particular) touched upon a matter of public concern.

In 2006, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that speech pursuant to your official duties is not public concern speech but, instead, unprotected work speech, entitled to no greater constitutional protection than water cooler talk about the Yankees.

How does this affect Paola's case? It was dismissed by the district court, and the Court of Appeals affirms that dismissal. The decision does not tell us what happened to Paola (demoted or fired or something else) but whatever happened to him is not unconstitutional. According to the Court of Appeals (Cabranes, Raggi and Hall), this is because "the record contains much evidence that state troopers must report potential wrongdoing either up the chain of command or to an Internal Affairs officer." The employee manual says so. "Moreover, a state trooper captain stated in his affidavit that 'it is understood among sworn officers ... that a trooper is required to report wrongdoing of a fellow officer to chain of command or Internal Affairs." Since Paola reported misconduct and potential illegalities to Internal Affairs, he did not engage in First Amendment speech. I don't know what happened to Paola, but whatever happened to him as a result of that whistleblowing, it was legal under Garcetti.

Court of Appeals shoots down Title VII discrimination claim

The Second Circuit holds that a black principal on Long Island cannot make out a discrimination claim under Title VII and other civil rights because he does not have a prima facie case or any evidence that the alleged mistreatment was a pretext for discrimination.

The case is McIntyre v. Longwood Central School District, a summary order decided on June 4. Plaintiff's best evidence seems to be that he received only a 17 percent raise under the union contract, while other employees got raises ranging from 27-37 percent.

The retaliation claim fails because, while he did file an EEOC charge of racial discrimination in October 2004, the union contract was signed in spring 2006. That time-gap is too long to permit an inference of retaliation. In layman's terms, this means that if management wanted to screw over McIntyre, it would have done so earlier. Without other evidence of retaliatory intent (which plaintiff does not have), the causal connection cannot extend beyond a few months in this jurisdiction.

The disparate pay raises in the union contract also cannot support an inference of discrimination. This is a factually-dense holding against McIntyre that looks at what he was actually making compared with other employees. What it boils down to is that he was still a well-paid administrator. The Second Circuit summarizes the evidence in holding there can be no inference of race, age or gender:

As the District Court noted, (1) McIntyre was the highest paid member of the [Middle Island Administrator's Association] before the CBA was negotiated, and he was the 13th highest paid junior high school principal in the county, while many of the other members of the MIAA were among the lowest paid employees in the county in their respective positions; (2) the only other black male member of the MIAA received the highest salary increase of the group; (3) the second-highest paid member of the MIAA after plaintiff, a white female who was at the same managerial level as McIntyre (and who was also, it happens, president of the MIAA) received essentially the same treatment he did; (4) three of the other four black members of the MIAA received the highest percentage, or near the highest percentage, salary increases; (5) the seven other male members of the MIAA received salary increases ranging from 36% to 43.5%; (6) the white male high school principal whom McIntyre alleges received a higher salary than he did was hired after the CBA was negotiated, and, moreover, is not similarly situated to the plaintiff in that he is principal of one of the largest high schools in the county; (7) the seven male administrators, five black administrators (excluding McIntyre), and one Hispanic administrator in the MIAA all received salary increases ranging from 33.2% to 43.5%; and (8) two of the four members of LCSD’s negotiating team were males—one was a 56-year-old white female and one was a 62-year-old black female.

Summary orders do not tell us everything about the case, but the facts in the above paragraph do not bode well for a discrimination claim. The Court of Appeals is rather aggressively looking at the totality of the evidence in finding that, whatever grieves McIntyre, it cannot be on the basis of age, race or gender. Mind you, the above analysis only covers the prima facie of discrimination, which is a de minimus standard. After reaching that conclusion, the Court completes the inquiry by holding that management articulated a neutral reason for the pay disparities: to ensure that salaries for higher level administrators like McIntyre remain below those received by senior management.

2d Circuit vacates decision reinstating pro se plaintiff's victory

The below blog entry was written a day or two after the decision came down, but since that time the decsion has been withdrawn by the Court. Still worth a read.

The word of the year for plaintiff's lawyers these days is Iqbal, as in Ashcroft v. Iqbal, 129 S.Ct. 1949 (2009), a Supreme Court ruling that requires plaintiffs to file "plausible" complaints and dispenses with the more lenient "notice pleading" under the Federal Rules of Civil Procedure. But Iqbal is still a new case, and the Court of Appeals is still trying to figure it all out.

The case is DiPetto v. United States Postal Service, a summary order decided on May 12. DiPetto is suing pro se for employment discrimination. Pro se plaintiffs get the benefit of the doubt when courts are reviewing the sufficiency of their complaints. In the Second Circuit, the standard is that "dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases." More broadly for the rest of us, heightened pleading requirements are not appropriate for civil rights cases alleging racial discrimination.

This cloudy mix of competing legal standards (Iqbal plausibility against solicitude for pro se litigants) compels the Court of Appeals (Miner, Walker and Lynch) to reinstate DiPetto's lawsuit. This is a rare victory in the Second Circuit for a pro se appellant. DePetto wins the appeal because "Appellant stated he was Caucasian, described specific discriminatory actions that had been taken against him by his supervisor, and alleged that he was treated differently, inter alia, on the basis of his race." In addition, the complaint provides relevant details, including the allegation that, "because he was Caucasian, he received less overtime and work breaks than other employees, and that sick and annual leave policies were applied differently to him." As this is "fair notice" to defendant about the basis for the discrimination claim, the complaint is good enough to be reinstated.

After this blog entry was posted, an astute reader emailed me to ask where he could find a copy of this opinion. It is no longer on the Second Circuit website, and it's not on Westlaw, either. The docket entries say that the decision summarized above was issued on May 12, 2010. But another entry for that same day says the decision was issued in error. The docket entry reads: "Notice to counsel in re: Order vacating summary order filed on 05/12/2010." The docket entries do not tell us why the decision was vacated.

First Amendment speech doesn't always last forever

Public employees have the right to speak out on the job without fear of termination. In order to win the case, the plaintiff has to engage in protected speech, i.e., speech on a matter of public concern, like municipal corruption or malfeasance, and not matters of private concern, like the quality of the office air conditioning or dissatisfaction with office policies. But does protected speech lose its vitality over time?

The case is Nagle v. Fried, 07 Civ. 2860 (TSZ), an unpublished decision from the Southern District of New York, decided on March 17. Since the case is nowhere to be found in the databases, some factual background is in order.

Nagle was a public school teacher in the Mamaroneck school district. Before that, she worked at the Henrico school district in Virginia. In 2002/03, as an Henrico teacher, Nagle made reports to law enforcement authorities concerning a colleague suspected of physically and verbally abusing students (she heard that abuse coming from a nearby classroom). Since she supposedly did not follow protocol in blowing the whistle, Nagle received a written reprimand, and the incident received a lot of press coverage in Virginia.

Five years later, while up for tenure at Mamaroneck, Nagle had some disputes who district officials who were reviewing her candidacy. She circulated a memo critical of the school psychologist, Merling, who had given Nagle a negative review. Put off by this criticism, Merling Googled Nagle and found out about the whistleblowing in Virginia. By this point, the superintendent was already leaning against recommending tenure for Nagle, allegedly because of her difficult personality. Nagle sues, claiming she was denied tenure at Mamaroneck because of what the school psychologist learned from the Google search: that Nagle was a whistleblower at a Virginia school district, and therefore a troublemaker.

Two primary holdings here. First, Judge Zilly (a federal judge in Seattle who is handling some cases in SDNY) says that Nagle did not engage in protected First Amendment speech in Virginia because she did not follow protocol and was therefore disruptive. Mamaroneck was therefore allowed to take the Virginia speech into account in denying Nagle tenure.

The more remarkable holding is Judge Zilly's alternative reasons for dismissing this case. The issue is whether "public concern" speech retains its vitality five years after the plaintiff made it, such that a subsequent employer cannot take that speech into account in terminating her position. As Judge Zilly puts it, "the Court will address whether the geographic and temporal remoteness of plaintiff's reports of abuse remove them from the ambit of protected speech." The court notes concern over the "potential for abusive invocation of previous speech that, although uttered in an appropriate way, pertained to a matter now stale or of interest only in another locale."

So what's it going to be? Can Mamaroneck hold this five year-old whistleblowing against Nagle even if the speech touched upon a matter of public concern? Judge Zilly says yes, reasoning:

[T]he efficient provision of public services ... will not be served if government employees are insulated, in perpetuity and in ubiquitous fashion, from otherwise justified discipline or adverse action simply because they once engaged in protected speech. Instead, time and place must play a role in deciding what constitutes a 'matter of public concern.' Such analysis is consistent with jurisprudence regarding obscenity, another First Amendment doctrine, because the scope of public concern, like the standards of decency, might differ significantly from one community and/or era to another.

Judge Zilly cites Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002) for this proposition. Ashcroft summarizes the three-part test for determining whether speech is obscene and therefore not protected under the First Amendment. One of the elements of that test takes into account "contemporary community standards."

The Court goes on to reason that, while some whistleblowing might remain relevant over the course of several years and many miles away, this is not such a case.

Rather, here, by the time plaintiff's reports of abuse in Henrico were revealed by Dr. Merling's Google search, they were simply old news; the teacher involved had long since removed from the classroom and convicted, and the teacher's misconduct was an isolated incident, not part of a larger pattern or conspiracy. Moreover, although assaults by teachers against students is a topic of universal concern, the specific events about which plaintiff spoke were or more limited interest, primarily or perhaps solely to those in the Henrico community. The Court therefore holds that, due to temporal and geographic remoteness, plaintiff's expressive conduct in Henrico, to the extent it was protected speech when uttered, was no longer protected speech when defendants learned of plaintiff's reports and/or denied her tenure.

This is an interesting holding that I have not seen in the Second Circuit before, but if this case is appealed, the Circuit may not even address it. The holding that addresses the temporal life of Nagle's protected speech is an alternative holding, and Judge Zilly goes on to say that, under the Mt. Healthy doctrine, Mamaroneck would have denied Nagle tenure even had it not taken into account the Virginia whistleblowing. The individual defendants would also receive qualified immunity on the basis that they did not violate clearly-established rights of which a reasonable public official would have known.