Equal protection claims over zoning decisions are very difficult to win

Take a good look at the fellas who sit on your Town Board. You may think they are clowns, but they have a tremendous amount of authority to make decisions that affect our everyday lives, including authority to shape zoning decisions. Suing them in federal court is close to impossible. Particularly under the Equal Protection Clause.

The case is Ruston v. Town Board of Skaneateles, decided on July 8. The Ruston family owned land in upstate New York. They wanted to subdivide it. Local authorities said no. So the family sued under the Equal Protection Clause. At the time, this must have seemed like a good idea. In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the Supreme Court said that the Equal Protection Clause recognizes some lawsuits against municipalities if the plaintiffs were singled out in the provision of community services. This was called "class of one" litigation, which requires proof that the town or village intentionally treated the plaintiffs differently than similarly-situated (or comparable) residents without any rational basis.

While the Rustons had high hopes when they brought this action in Northern District of New York, this case dies a quick death in the Court of Appeals (Jacobs, McLaughlin and Sack), which takes a moment to bury a seven year-old precedent, DeMuria v. Hawkes, 328 F.3d 704 (2d Cir. 2003), which made it easier to bring these cases. But a lot has happened in seven years, in particular, the Supreme Court's ruling in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), which requires plaintiffs to plead in their complaints a "plausible" claim for relief, a legal standard which for all intents and purposes wiped out the tried-and-true "notice pleading" requirement, which placed upon plaintiffs a minimal burden in moving their cases forward.

The Rustons' case against the Town is dismissed because their "class-of-one" equal protection claim does not allege enough facts to support the claim that the Town favored other, similarly-situated landowners. Their claim against the Village Board on similar grounds does allege factual particulars, but the property owners favored by the Village are not similarly-situated to the Rustons. In other words, these other properties -- including a house built in 1987, a country-club that was renovated in the 1990s, an luxury spa and a large commercial building -- are not sufficiently comparable to the Rustons, who wanted to subdivide their property to build a 14-unit subdivision. Under the class-of-one cases, the Rustons have to show the court that they were so comparable to the favored landowners that the municipalities could only have treated them differently for utterly irrational reasons. Since this lawsuit on its face does not make that allegation, the complaint is dismissed.

Sexual harassment: we know it when we see it

What does it take to win a hostile environment case? Nobody knows. You know a hostile work environment when you see it.

The case is Leifer v. New York State Division of Parole, a summary order decided on August 23. Leifer is a Jewish employee whose supervisors made various religiously-hostile comments. The district court rejected the religious harassment claim. The Court of Appeals (Hall, Straub and Eaton [D.J.]) reinstates the case.

Leifer was subjected to six hostile comments from supervisors over a three-year period. Here they are:

(1) Dress’s statement that Jewish laws and customs were not binding on him and that he would not reschedule meetings because of Jewish holidays; (2) Dress’s statement that “you are not like the rest of us . . . . You are like Saddam Hussein”; (3) the failure to apprehend the individual responsible for defacing Leifer’s wedding photo; (4) Oeser’s refusal to grant Leifer an extended lunch hour during Passover; (5) Hoy’s directive that Leifer remove pictures from his wall displaying political figures near Menorahs; and (6) Hoy’s statement about filing false complaints of anti-Semitism.

The Second Circuit notes that while these statements, by themselves, "may not allow a reasonable trier of fact to conclude based on that act alone that Leifer was subjected to a hostile work environment[,] [W]hen viewed in toto, however, drawing all reasonable inferences in Leifer's favor, there is a genuine issue of fact whether the acts in question had an adverse effect on, or altered the conditions of, Leifer's employment." The question is, does this harassment alter the conditions of Leifer's employment "for the worse?" They might, and that's enough to vacate summary judgment.

So Leifer had six incidents in three years. The Court of Appeals distinguishes this case from Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002), which rejected a hostile work environment case where the plaintiff had five incidents in four years. This case is also distinguished from an unpublished district court action, Shabat v. Blue Cross Blue Shield, where the plaintiff had nine hostile incidents in 3.5 years. Every case is distinguishable from any other case, and the Second Circuit says that "the frequency and severity of harassment demonstrated in prior cases does not mandate a specific level of harassment that future plaintiffs must demonstrate to avoid summary judgment against them."

ACORN takes it on the chin

If anyone got snagged in the modern culture wars, it was ACORN, the community service program that became a conservative target and found itself in the national crosshairs after guerrilla activists caught some ACORN staffers on videotape in embarrassing scenarios. When Congress cut off federal finding for ACORN, the organization sued, claiming this was a Bill of Attainder. The district court ruled in ACORN's favor, but the Court of Appeals reverses, and ACORN loses.

The case is ACORN v. United States, decided on August 13. It's always a strange political culture that acquaints us with obscure constitutional provisions. When Nixon wouldn't hand over the tapes in the early 1970s, we had to familiarize ourselves with Executive Privilege. When Clinton got caught up in a sex scandal in 1998, we had to review the impeachment provisions. And when Republicans went after ACORN, we learned about the Bill of Attainder.

The Bill of Attainder Clause prohibits any "law that legislatively determines guilt and inflicts punishment upon an identifiable individual (including corporations) without provision of the protections of a judicial trial." The question here is whether the funding cutoff is a "punishment" under the Bill of Attainder Clause. It isn't. The Second Circuit (Miner, Cabranes and Wesley) notes that ACORN was not permanently banned from federal funding and it rejects the argument that even a temporary cutoff that could destroy the organization equals punishment under the Constitution, particularly since ACORN only receives 10 percent of its funding from federal grants. The Court says, "we doubt that the direct consequences of the appropriations laws temporarily precluding ACORN from federal funds are 'disproportionally severe' or 'so inappropriate' as to constitute punishment per se."

ACORN could win the case if the funding cutoff was a functional punishment, i.e., if the legislative action constitutes a grave imbalance or disproportion between the burden on ACORN and the legislative purpose. That argument is rejected because, among other reasons, the congressional funding decision affected other, related organizations also and therefore ACORN was not the only organization affected. Finally, while a Bill of Attainder may exist if Congress clearly intended to punish the organization, while some conservatives in Congress went out of their way to condemn ACORN and called it a "criminal enterprise," Congress as a body did not make any findings of guilt to that effect.

ACORN may yet win the case, but not under the Bill of Attainder Clause. The case is remanded to the district court to take up ACORN's First Amendment and due process claims.

Retaliation claim proves once again the cover-up is worse than the crime

We've seen it many times: the underlying discrimination claim is dismissed but the retaliation case growing out of the meritless claim is good enough for trial. The cover-up is worse than the crime.

The case is Ragusa v. Malverne Union Free School District, a summary order decided on June 21. Ragusa was a disabled math teacher, but she does not satisfy the Americans With Disabilities Act's strict definition of "disabled." While she underwent surgery to remove a benign brain tumor, a hearing aid allows her to hear properly. While she is unable to blink her left eye, causing her to suffer painful infections and requiring frequent eye-drops, she was able to use medication that eliminated the need for the eye drops. Her walking and speaking impairments are not deemed serious enough to qualify as ADA disabilities, either. She did not suffer the substantial limitation of a major life activity, a requirement under the statute, and so management was not required to honor her request for a reasonable accommodation. (Under the amended ADA, her hearing and vision problems may in fact qualify as protected disabilities despite the corrective measures, but this case is decided under the old ADA).

However, she presents enough evidence for trial on the retaliation claim. Ragusa was fired shortly after her lawyer contacted the school district about the alleged discrimination. But any inference of retaliation is rebutted by evidence that Ragusa's poor performance was documented 25 times in detailed classroom observations.

While the termination claim is dismissed for good, she can proceed on a different retaliation claim alleging that the school district jerked her around in subjecting her to more difficult employment conditions. After she requested an accommodation for her disability, the school rejected that request and instead placed her in a separate building across the street, requiring her to teach students outside her certification, including special education students who needed close supervision. In the context of Ragusa's right to ask for a reasonable accommodation, even if she did not have a protected ADA disability, "the added challenge of the sixth-grade assignment" was enough to dissuade a reasonable employee from asserting her rights. The dissuasion argument grows out of the Supreme Court's recent case holding that management's response to protected activity constitutes an "adverse employment action" if it would make employees think twice about that engaging in that activity in the future. See, Burlington Northern v. White, 548 U.S. 53 (2006).

In a different context, the classroom transfer might not qualify as an "adverse employment action." But in this retaliation case, the jury may find that it does. This is why retaliation cases often go to trial even if the plaintiff did not in fact engage in protected activity. So long as she asserted her rights in good faith, the employer cannot under the civil rights laws retaliate like this. So, while Ragusa's damages claim falls out of the picture, her less lucrative retaliation claim arising from the classroom assignment goes to trial. If she wins, she gets some damages, just not all of them. And, as they say, something is better than nothing.

"Capturing the Friedmans" sex-abuse fails on technicality

The Court of Appeals has rejected as untimely a challenge to a highly unreliable sex abuse conviction, but not without strongly suggesting that the Nassau County District Attorney take a hard look at the case that inspired "Capturing the Friedmans," a documentary that questions whether a Long Island teenager was railroaded into pleading guilty to crimes that he did not commit.

The case is Friedman v. Rehal, decided on August 16. This is a sad case that reminds us of the mass hysteria that erupted in the 1980s over child molestation allegations, many of which yielded criminal convictions that were vacated on appeal due to the suggestive questioning of children by zealous investigators. The Friedmans, father and son, were among the victims.

Arnold Friedman and his son Jesse gave computer classes at their home on Long Island. In 1987-88, without physical evidence or any complaints of abuse, they were arrested for allegedly molesting a large number of their 8-12 year-old students. The Second Circuit details how the Friedmans were railroaded into pleading guilty, as the community was whipped into a frenzy when the charges were publicized and the local judge presiding over the case decided they were guilty even before she began hearing evidence and threatened to lock up Jesse and throw away the key. The alleged victims were subject to aggressive and suggestive questioning by investigators who would not give up until they got more "accounts" of sexual abuse. The father plead guilty so that his son might have a better chance of acquittal. The son, Jesse, plead guilty under duress.

Years later, Jesse moves to vacate his conviction. He cannot do so. The petition for habeas corpus is untimely. Convicts have only one year to seek habeas relief; for various reasons, Jesse filed his challenge beyond the one year deadline. An exception to the one-year rule permits untimely petitions upon a claim of "actual innocence," but that's a tough one. Jesse says the prosecutors violated his Brady rights in failing to produce evidence that the police used hypnosis in order to implicate him. The hypnosis may have produced a "false memory" from the alleged victim and provided Jesse some ammunition on cross-examination at trial. But the Second Circuit (Raggi, Pooler and Korman [D.J.] says that withholding this kind of impeachment evidence prior to a guilty plea is not a Brady violation. No dice for Jesse.

You have the sense that the Second Circuit would grant Jesse's petition if it could. The Court of Appeals spends the second half of the opinion summarizing the "false memory" convictions during the 1980s and 1990s, when innocent people went to jail for child abuse, only to be vindicated later on, after the courts took a hard look at the questionable interviewing techniques that prompted children to falsely claim sexual abuse. Jesse's case falls squarely within that pattern. The best that the Second Circuit can do is to urge the District Attorney's office to take another look at his case and take seriously her ethical obligation to ensure that justice was done.

Circuit sustains First Amendment challenge by dissenting non-union members

Non-union members can be compelled to pay union dues if the union is using that money for non-ideological activity that benefits all employees, including the people who opted out of the union. That issue is tricky enough, but it gets even more complicated when we move to the fringes of permissible activity, i.e., when can the union charge non-members for its organizing activities?

The case is Scheffer v. Civil Service Employees Association, decided on June 28. The union here represents employees in the developmental disability, food service and courier industries which "have faced increased threats to their job security, wages, and benefits in recent years due to employers' efforts to contract out their work to non-union, private-sector employees in the same industries," the Court of Appeals observes. In addition, additional non-union employees have impaired CSEA's ability to achieve wage and benefit gains for its members. Public-sector employers in New York are trying to drive down wages by pointing to the lower wages among non-union employees in these industries.

Despite the challenges faced by the union, the non-union plaintiffs are entitled to summary judgment on their First Amendment claim that they do not have to pay for CSEA's organizing. While organizing is critical to CSEA's mission, these particular plaintiffs can opt out of those dues. As probationary employees, "they derive little meaningful benefit from the unionization of workers in the developmental disability, food service and courier industries, and therefore present no free-rider problem by not paying the costs of this organizing," the Court of Appeals (Parker, Jacobs and McLaughlin) holds.

The union argued that "higher union density in the public sector contributes to union bargaining power -- the ability of a union to negotiate better wages and benefits for those the union represents." Interesting theory, but the Second Circuit is not buying it. The Court reasons:

The union density theory fails to explain how organizing private-sector workers benefits union-represented public-sector employees who do not compete for jobs with the workers being organized. Here, the union has presented no evidence that probation officers compete for jobs with workers in the developmental disability, food service, and courier industries. Indeed, it is self-evident that probation officers do not do the same work as those who work in the developmental disability, food service, or courier industries. Nor do probation officers compete with people who do those jobs, except to the extent that everybody competes with everybody.

This analysis is complex, further supporting my theory that nothing is more complicated in constitutional law than First Amendment litigation. But in his concurring opinion, Judge Jacobs would "decide this case on an alternative basis that is simple, obvious, and available. I would hold -- categorically -- that the First Amendment is violated when public-sector unions charge dissenting nonmembers the cost of organizing private-sector employees."

As Judge Jacobs sees it, union organizing is an ideological proposition: "that government employment should be augmented and that privatization should be frustrated and prevented." He notes the ongoing political debate over whether to privatize public services and says that courts should not presume that the union's goal of reducing competition with the private sector "trumps the First Amendment right to agitate for reform, austerity, and economy in government."

Constantly calling female subordinate a "bitch" may violate Title VII

The Court of Appeals holds that a female field technician who was given unequal working assignments and discipline at Verizon can sue for a hostile work environment on the basis of her gender.

The case is Pucino v. Verizon, decided on August 13. Bergstein & Ullrich, LLP, represents the successful plaintiff, whose case gives the Court of Appeals (Raggi, Winter and Livingston) an opportunity to clarify when the word "bitch" can support a hostile work environment claim.

Normally, hostile work environment cases involve explicit sexual harassment in the form of groping, sexual comments, etc. But these cases can also allege that the plaintiff suffered a hostile work environment on the basis of severe or pervasive gender discrimination that has nothing to do with sex. That is what happened here. Unlike her male co-workers, Pucino was subjected "to disparately harsh working conditions." Contrary to procedure, she was sent by herself to dangerous neighborhoods, given unequal assignments, tools and equipment and discipline. The male-dominated workplace also went bananas when they found out that Pucino complained about this discrimination to the company's EEO office, and someone put a dead snake in her truck in retaliation.

Verbal harassment by Pucino's superiors also created a sex-based hostile environment. Two male supervisors constantly called Pucino a bitch. This word is not always gender-specific ("Son of a bitch" is not sexist) but it usually is. This issue is for the jury. The Second Circuit holds that "we ... have no doubt that such a trier could find that [the supervisor's] 'constant' use of the word over several years in the context of the present record was sex-based and reflected hostility to women."

Pucino cannot win the case unless she was abused on the basis of her gender enough times to create a hostile work environment. Like many harassment plaintiffs, the harassment happens too often for Pucino to say exactly when all the abuse happened. Citing Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), the Court reminds us that "a plaintiff ... need not recount each and every instance of abuse to show pervasiveness." The Court concludes, "Pucino's evidence fits within the Torres precedent. She has described the nature of the alleged abuse in some detail. Although she omitted specifics as to the date and circumstances of each instance of abuse, her testimony was corroborated by other witnesses." Summary judgment reversed, and the case is remanded for trial.

Dispute over racial consent decree in Syracuse goes to trial

This is the kind of case that could dominate a Circuit judge's Supreme Court nomination, much like Ricci v. DeStefano became the focus when Sonia Sotomayor was named to the Supreme Court in 2009. Since Elena Kagan had nothing to do with this case, it will probably labor in obscurity.

The case is Vivenzio v. City of Syracuse, decided on July 1. This case strikes at the heart of our culture wars: racial discrimination in employment and consent decrees that require municipal officials to take race into account in hiring. The plaintiffs are firefighters who were denied employment by City of Syracuse because the City had to comply with a 1980 consent decree that ensures that the number of black firefighters approximated the percentage of blacks in the City's labor pool. The district court denied the plaintiffs summary judgment and instead dismissed the case. The Court of Appeals (Kearse, Livingston and Vitaliano [D.J.]) reverse and remand the case for trial.

In 1980, Syracuse entered into the consent decree because blacks comprised 10 percent of the labor force but only 4 out of the City's 478 firefighters were black. Since that time, the City's hiring practices have improved, and by April 2004, 16.58 percent of the City firefighters were black. So when the white plaintiffs in this case unsuccessfully sought these positions in 2004, they were denied those positions even thought "their civil service test scores were higher than those of at least five candidates hired from the 'black list.'"

Plaintiffs are entitled to a trial on their claims brought under Title VII and Section 1981, which prohibits racial discrimination in employment. The Court of Appeals rules that it is by no means certain that the City's reliance on the 1980 consent decree is a legitimate reason to deny the plaintiffs employment. For one thing, the City did not adduce any evidence of the racial makeup of the City's labor pool, a necessary factor in attempting to comply with the consent decree. Second, the district court should not have relied on the percentage of blacks in the City's overall population (about 25 percent) in determining that the goals of the consent decree had not been met; that percentage may or may not match the percentage of blacks in the City's labor pool (about 16 percentage).

If the goals of the consent decree are met, then the City is going to have a difficult time favoring blacks over whites in hiring firefighters. The district court wrote that the plaintiffs have not challenged the constitutionality of the consent decree, but Judges Livingston and Vitaliano write in concurrence that the plaintiffs have in fact lodged such a challenge. These judges also think it would not be a bad idea for the district court to take up that challenge on remand in light of judicial skepticism over racial hiring goals since 1980, when the City entered into the consent decree.

Bergstein & Ullrich sustain $1 million damage award in student discrimination case

Verdict against district upheld

Saturday, August 7, 2010

By Paula Ann Mitchell
Kingston Daily Freeman

PINE PLAINS — A federal judge Thursday upheld a verdict against the Pine Plains school district, ruling there was sufficient evidence of racial discrimination and deliberate indifference against former student Anthony Zeno to justify a damage award of $1 million.

Back in March, an all-white jury concluded that the school district had violated Title VI of the 1964 Civil Rights Act and awarded $1.25 million to Zeno.

The judge Thursday reduced that amount to $1 million, but he rejected the school district’s efforts to more significantly reduce the award, said Stephen Bergstein of the Chester-based Bergstein and Ullrich, which represented the Zenos.

Bergstein said he expected this outcome on both fronts.

“Once the jury reaches its findings, it’s very hard to overturn. The court of appeals has to accept what the jury found. They can’t reweigh the evidence. They can’t re-examine the factual evidence on appeal the way the jury looks at the evidence,” Bergstein said.

It’s also not uncommon for costly verdicts to get reduced, he noted.

“Most discrimination cases, they’re not million-dollar cases. This was different because it involved a child,” he said.

“There are far more employment discrimination lawsuits than education discrimination lawsuits. You don’t see too many in the educational context, but there is a federal regulation that recognizes that emotional harm for a teenager at school is a different emotional harm than (for) an adult in a work place,” Bergstein said.

The Zenos moved to Pine Plains from Long Island in January 2005, and Anthony, who is multi-racial, was harassed almost immediately after he began attending Stissing Mountain High School, Bergstein said.

“It was three years of hell. There was a lot of violence and threats … and his grades and academics suffered as a result of this,” Bergstein said.

“You can never get your high school years back. It’s not like work where you can find another, better job. Once you’re out of high school, it’s over.”

Bergstein said the harassment continued despite repeated efforts by the family to stop it and the school’s attempt to punish offenders and involve diversity trainers.

“They were implicitly giving the green light. At some point, the actions of the racist kids are the responsibility of the school because the school was in a position to make it stop, and it didn’t,” Bergstein said.

School officials referred all inquiries about the outcome to the Albany-based firm of Towne, Ryan and Partners, which represents the Pine Plains district. Calls to the law firm were not returned Friday.

Judge upholds verdict in Pine Plains discrimination case


Poughkeepsie Journal
August 9, 2010

A federal judge who presided at a racial discrimination trial involving a former student in the Pine Plains Central School District has sustained the
verdict but reduced the amount to be awarded in damages.

Following a week-long trial in White Plains in March, the jury found the school district had failed to adequately address racial harassment, assaults and a death threat against former student Anthony Zeno, 21. Zeno attended Pine Plains schools from 2005 to 2008.

Federal District Court Judge Paul E. Davison rejected the school district’s post-trial motion to have the verdict overturned. But Davison reduced the
damages awarded by the jury from $1.25 million to $1 million.

The Zeno family’s attorney, Stephen Bergstein, of Chester, Orange County, said he expected the school district to appeal the verdict and the damage award.

Zeno’s parents, Henry and Cathleen Zeno, filed the suit on their son’s behalf. Henry Zeno is Latino and Cathleen Zeno is white, Bergstein said. Anthony is "very dark skinned," which led to him being taunted by white students at Stissing Mountain Junior-Senior High School with racial epithets and racially motivated threats, he said.

It's time to revise your jury instructions

The Court of Appeals has issued a remarkable opinion that cautions the trial courts that they should not charge juries in employment discrimination cases that the plaintiff must show the defendant's stated reason for his termination or demotion was a pretext. Instead, it is enough to simply charge the jury that the plaintiff bears the burden of showing that discrimination played a role in the adverse employment action.

The case is Henry v. Wyeth Pharmaceuticals, decided on August 4. This case is significant also for its holdings on the right way to charge the jury in a retaliation case as well as the legal standard governing motions in limine when the plaintiff wants to introduce evidence that other supervisors made racial comments at work. But the Second Circuit leaves its most provocative ruling for the end of the decision. While the Court emphasizes that the pretext discussion is dicta, the Court of Appeals is sending us a message: the standard jury instructions are placing an unnecessary burden on plaintiffs.

The instruction in this case was typical of Title VII cases. Judge Conner told the jury the following (among other things):

If Wyeth satisfies its burden by presenting evidence to show a nondiscriminatory reason for its employment action or decision, you then proceed to the third step in the analysis, which is to determine whether plaintiff has satisfied you by a preponderance of the credible evidence that the reason offered by Wyeth for its decision or action is only a pretext or coverup for what was in truth a racially discriminatory motive. Thus, plaintiff must establish both that the reason advanced by Wyeth was false, and that the discrimination was a motivating factor in Wyeth’s decision or action.

Plaintiff's counsel had the judge then tell the jury that the defendant's reason does not have to be false in order for plaintiff to win. This is because the plaintiff can still win even if the employer does not offer a false reason. But the judge then told the jury that the plaintiff has to show that the reason is a pretext, i.e., made with conscious intent to deceive. In other words, a reason offered in "bad faith."

The Second Circuit (Leval, Parker and Pooler) says that the trial courts should not tell the jury that the plaintiff is required to show that the employer's articulated reason is "pretext." That word may confuse the jury and add to the plaintiff's burden of proof. In order to win the case, the plaintiff does not have to show the employer lied or intended to deceive. As Judge Leval says, "In proving a case under Title VII, following the defendant's proffer of a justification, a plaintiff need only show that the defendant was in fact motivated at least in part by the prohibited discriminatory animus. ... A plaintiff has no obligation to prove that the employer's innocent explanation is dishonest, in the sense of intentionally furnishing a justification known to be false. The crucial element of a claim under Title VII is discrimination, not dishonesty."

As an aside, the Court of Appeals suggested this very point years ago, in Fields v. OMRDD, 115 F.3d 116 (2d Cir. 1997). Everyone ignored Fields. The Second Circuit is reviving the point in Henry v. Wyeth.

If you handle discrimination cases, you are probably scratching your head. Don't the courts use the word "pretext" all the time in outlining the plaintiff's burden of proof? Yes, but the Second Circuit says that "pretext" may be "a shorthand for the more complex concept that, regardless of whether the employer's explanation also furnished part of the reason for the adverse action, the adverse action was motivated in part by discrimination." In other words, the employer is lying in not telling the jury that the plaintiff was fired for discriminatory reasons.

The Second Circuit also says that we may be throwing around the word "pretext" through a misunderstanding of dicta in Supreme Court opinions, including St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), in which Justice Scalia stated that "a reason cannot be proved to be a 'pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." Similar language appears in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). So what does this language really mean? According to the Second Circuit,

It seems clear from the discussion that what the Court meant by its reference to the falsity of the employer’s asserted justification was not intent to deceive, but inaccuracy or incompleteness resulting from the failure to include the fact of the discriminatory motivation. In context, it is amply clear that the import of the statements in both Burdine and St. Mary’s was not that plaintiff was required to prove the employer’s stated justification was asserted with intent to deceive or in bad faith. It was rather that no plaintiff could prevail without establishing, by a preponderance of the evidence, that discrimination played a role in an adverse employment decision.

While it helps plaintiffs if the jury is not always told that the plaintiff must establish that the employer's reason is pretext, I am not sure that taking out the word "pretext" always helps the plaintiff. It may help if the employer is not lying to the jury and the plaintiff has other evidence of discrimination. In that circumstance, then the "pretext" instruction does add to the plaintiff's burden. But in most cases, the plaintiff has to prove that management is lying about the reason for his discharge or demotion. Simply telling the jury that the plaintiff has to prove the defendant was motivated at least in part by discrimination does not provide the jury guidance in how to prove discrimination. Pretext is one way to do that ("Ladies and gentlemen of the jury, JobCo says it fired Joe Smith because he was a bad worker. That's not true, it's a pretext, it's false. Joe Smith had great performance evaluations!").

I guess you can still ask the trial court to explain how the plaintiff may prove discrimination, and pretext in the form of an intentional falsehood by the employer is one way to do it. The Second Circuit says that "we caution district courts to avoid charging juries to the effect that a plaintiff must show that the employer's stated reason for an adverse action was a 'pretext.'" (Emphasis mine). Throughout the opinion, the Court of Appeals frowns upon the notion that the plaintiff "must" always prove pretext in these cases. So the trial court is not required to charge on pretext. In some cases, the standard pretext instruction may not fit the case, as the Court of Appeals explains. But the Second Circuit's careful warning that that plaintiff is not required to establish pretext suggests that, in appropriate circumstances, the trial court could still charge that pretext is one way to prove discrimination.

When are discriminatory remarks by other supervisors relevant at trial?

One of the most vexing issues in employment discrimination law is whether discriminatory remarks by supervisors in the workplace may be admitted in evidence at trial. The plaintiff wants the jury to hear the evidence because these remarks show that she worked in a discriminatory atmosphere. The defendants want the evidence excluded because it may cause the jury to rule against the company simply because it employs bad people. As non-binding trial court rulings usually provided the only guidance on this issue, I have always wondered if the Court of Appeals would get around to articulating a legal standard. That day has arrived.

The case is Henry v. Wyeth Pharmaceuticals, Inc., decided on August 4. I wrote about the retaliation part of Henry in this blog post. But there's more to the Henry case than retaliation. The Second Circuit also provides guidance on the admissibility of evidence that may help the plaintiff win the case by showing that supervisors in general harbored racial or sexist views.

This issue arose because Henry sued Wyeth for racial discrimination. One manager, Bracco, egged on a black employee to sue him for discrimination because she'd lose the case anyway since his supervisors were black. He also told others at work that this woman "tried to put voodoo on me." A Haitian-American employee accused a manager, Vitanza, of saying that a malfunctioning alarm system was a "tar baby." A third manager, Wardrop, joked about voodoo to a subordinate but was not reprimanded for it. Vitanza also dropped his pants and made gestures to make fun of Hispanic youth. The trial court excluded all of this evidence.

Here's the legal standard the Second Circuit (Leval, Pooler and Parker) sets out in determining whether this kind of evidence is admissible at trial:

The district courts in this circuit have developed a standardized approach for applying these concepts to individual cases. In determining whether a remark is probative, they have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-5 level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). While we caution that none of these factors should be regarded as dispositive, we think this framework will often provide a useful approach to the admission or exclusion of remarks not directly related to the adverse action against the plaintiff, and employ it here.

Trial courts enjoy great discretion to admit or deny evidence, and the Second Circuit rarely orders a retrial on these issues. It should be no surprise that Henry does not get a new trial on his discrimination claim despite the district court's rulings, mostly because these managers either did not play any role in Henry's personnel decisions which predicate the lawsuit or the remarks were made too long ago to be relevant. Some of the comments could be deemed discriminatory, i.e., the "tar baby" reference, but although the guy who said it did act against Henry, the comment was not made in the context of any personnel decisions and, the Second Circuit says, it was also properly excluded from trial because it may have so offended the jury that it might have ruled against the company for continuing to employ him. As for the anti-Hispanic gestures, they may have been relevant and therefore Judge Conner could have allowed them into evidence, but that is not enough for a retrial in light of what the Court of Appeals deems overwhelming evidence that this particular manager was not motivated by discrimination in giving Henry a bad performance review.

Bad jury instruction gets retaliation plaintiff a new trial

Anything can happen at trial. Even experienced judges can make mistakes that prompt the Court of Appeals to order a retrial. It happened again this week, when the Second Circuit uprooted a defense verdict in a Title VII retaliation claim because the trial court did not properly instruct the jury.

The case is Henry v. Wyeth Pharmaceuticals, Inc., decided on August 4. Henry worked for Wyeth in a variety of positions. At some point in his employment, Henry came to believe that he was being discriminated against because of his race. Henry specifically complained about discrimination in meetings with certain Wyeth managers, including, among other people, the head of diversity and the head of the Pearl River facility, where Henry worked. On Henry's behalf, an attorney also advised the company in writing that Henry was being discriminated against. We call this "protected activity" under Title VII because management cannot take these protests into account in disciplining him or denying him a promotion. Then, Henry dropped the Big One: he filed a formal charge of employment discrimination with the Equal Employment Opportunity Commission. After that, the bottom fell out for Henry, and he was placed on a performance improvement plan and otherwise micromanaged and denied a promotion that was given to a white applicant.

The went to trial in the Southern District of New York. If you are a plaintiff in a civil rights case and you think there is no way you can lose your case, please read the next sentence closely. An experienced federal judge, in his 36th year on the bench, gave the jury a bad instruction on a routine issue concerning retaliation in Title VII cases. These things happen. In 2000, setting out a "general corporate knowledge" theory, the Second Circuit held the jury can presume that individuals who screwed over the plaintiff in the wake of his protected activity knew about the protected activity, even if the employee did not bring his discrimination complaints to their personal attention. That case is Gordon v. New York City Board of Education, 232 F.3d 111 (2d Cir. 2000). Summarizing Gordon, the Second Circuit (Leval, Pooler and Parker) in Henry's case says:

Gordon directly addressed the situation in which a corporate agent carries out an adverse employment action on the orders, explicit or implicit, of a superior with knowledge that the plaintiff has engaged in a protected activity. However, in order to show causation in the sense required by McDonnell Douglas—that is, a causal connection between the protected activity and the adverse employment action—it is not necessary that the supervisor who has knowledge of the plaintiff’s protected activities have ordered the agent to impose the adverse action. A causal connection is sufficiently demonstrated if the agent who decides to impose the adverse action but is ignorant of the plaintiff’s protected activity acts pursuant to encouragement by a superior (who has knowledge) to disfavor the plaintiff.

That's as good an explanation of the "general corporate knowledge" theory as I've seen. Since Judge Conner did not properly instruct the jury on the law governing retaliation claims, Henry, who lost the trial on that claim, gets a new trial. The Court of Appeals does not think Henry has a compelling case, but that is not required in order for him to get a new trial. On paper, he can win the case because the adverse decisions - including the promotion denial - closely followed Henry's protected activity.

Some supervisory liability survives Iqbal

When the Supreme Court issued the now-famous Iqbal decision in 2009, all eyes were on the Court's new "plausibility" test for assessing federal complaints, a standard that made it harder for lawsuits to get out of the starting gate. But another aspect of Iqbal was its apparent rejection of supervisory liability under 42 USC sec. 1983. It now appears that supervisory liability is not dead, though it is gasping for air.

The case is D'Olimpio v. Crisafi, 2010 WL 2428128 (SDNY June 15, 2010), decided by Judge Rakoff. D'Olimpio was arrested because the police thought he was abusing prescription drugs. He sues for malicious prosecution and alleges, in part, that the City's supervisory police officials did not properly reign in another officer, Crisafi.

In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Supreme Court noted the well-worn principle that Section 1983 does not recognize respondeat superior, but it also emphasized out of the blue that "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." The Court then rejected the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution."

This language from Iqbal appeared to reject the Second Circuit's longstanding view that Section 1983 did recognize supervisory liability where management was grossly negligent or deliberately indifferent to a subordinate's constitutional violations. The oft-cited precedent for this is Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). But Judge Rakoff says, "not so fast on supervisory liability." The district court here summarizes Iqbal to mean that "the degree of personal involvement varies depending on the constitutional provision at issue: whereas invidious discrimination claims require a showing of discriminatory purpose, there is no analogous requirement applicable to D'Olimpio's allegations regarding his search, arrest and prosecution," which do not delve into the arresting officer's subjective intent but instead examine the objective circumstances of the arrest.

Judge Rakoff is not the first to suggest that supervisory liability is still breathing after Iqbal. In Sash v. United States, 674 F. Supp. 2d 531 (SDNY 2009), Magistrate Judge Peck noted that "Although the Second Circuit has not weighed in on what remains of Colon after Iqbal, several decisions in this district have concluded that by specifically rejecting the argument that 'a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution,' Iqbal effectively nullified several of the classifications of supervisory liability enunciated by the Second Circuit in Colon v. Coughlin." However, Judge Peck concluded, "These decisions may overstate Iqbal's impact on supervisory liability."

Judges Rakoff and Peck agree that it may be true, post-Iqbal, that intent-based constitutional claims, such as those alleging discrimination, no longer permit liability against supervisors who knew about but did nothing about the discrimination. But if the constitutional claim does not require a showing of intent, such as false arrest or deliberate indifference claims, supervisory liability may indeed attach.

Inmates have more speech rights than police officers

You know how people claim that the inmates have taken over the asylum, or that the criminals have more rights than the rest of us? Usually we roll our eyes at these complaints. The inmates have yet to take over the asylum, but an argument can be made that criminals have more rights under the First Amendment than police officers.

Two cases bear this out. Let's start with Kotler v. Donelli, a summary order from the Court of Appeals decided on June 24. Kotler is locked up at Bare Hill Correctional Facility. He participated in the inmate grievance program. He claims that, in retaliation for his involvement with that program, corrections officers set him up for discipline by planting a weapon in his cell. In a summary order, the Court of Appeals (Calabresi, Pooler and Chin) reverses summary judgment and reinstates Kotler's case because Kotler disavows ownership of the weapon, defendants have offered inconsistent testimony about how they found the weapon and one of them expressed a desire to knock Kotler off the grievance program.

This case is treated as a routine matter. The Court notes that the parties agree that Kotler engaged in protected First Amendment activity in serving in the grievance program, and the Second Circuit notes in passing that one of its precedents from 2002 confirms that inmates have the First Amendment right to file grievances over the conditions of their confinement. God knows what Kotler did to land himself in Bare Hill, but even convicts cannot suffer retaliation for asserting their First Amendment rights.

What about the police officers who arrested Kotler, landing him in jail in the first instance? Michael Kaplan is a New York City Police Officer who blew the whistle on his supervisor, Crisafi, telling City investigators that Crisafi engaged in a laundry list of misconduct, including taking prescription drugs on the job, accidentally discharging his weapon while on duty, violating suspects' Miranda rights, working outside jobs during work hours and using the sirens and lights on his police car without authorization. Kaplan then suffered retaliation from fellow officers. Crisafi sabatoged Kaplan's work and someone fired bullets at Kaplan house and his house was vandalized. Kaplan's other supervisors also retaliated against him for piercing the blue wall of silence, confining him to desk duties and denying him training, classic acts of retaliation. These events gave rise to Kaplan's suit against the City, as a co-plaintiff in Kotler v. Crisafi, 2010 WL 2428128 (S.D.N.Y. June 15, 2010).

Kaplan cannot sue the City for retaliation under the First Amendment. In 2006, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006) that public employees who speak pursuant to their official duties are not engaging in free speech but unprotected work speech that carries no protection under the First Amendment against retaliation. Garcetti certainly scaled back the rights of public employees, who used to be able to sue for retaliation in connection with any speech that raised matters of public concern in the workplace.

Kaplan's complaints about Crisafi certainly raised matters of public concern. If Kaplan's speech was true, then Crisafi was a bad cop, and society has an interest in identifying and punishing bad cops. In ruling on the City's motion to dismiss Kaplan's complaint, Judge Rakoff holds that, under the Second Circuit's interpretation of Garcetti, Kaplan has no case under the First Amendment. That Second Circuit case is Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), which held that a school teacher's grievance about the way his school disciplined a violent student constituted unprotected speech pursuant to his official job duties because it was "part-and-parcel of his concerns" about his ability to "properly execute his duties," namely to maintain classroom discipline.

Although Judge Rakoff is reluctant to dismiss Kaplan's complaint, his ruling is a faithful application of Weintraub. He notes that "[j]ust as the speech in Weintraub was in furtherance of the teacher's duty to maintain classroom discipline, Kaplan's speech here, which related to ensuring the 'safety of citizens' and the 'constitutional rights of suspects,' was made in furtherance of his law enforcement duties as an investigator endowed with the power to arrest." As it was Kaplan's job to speak out like this, it is not free speech but work speech. He has no retaliation claim, and the ugly reprisals alleged in his complaint cannot predicate this First Amendment lawsuit. The inmate plaintiff in Kotler gets to file a grievance without fear of retaliation. Weintraub and Kaplan cannot.

These distinctions between inmate rights and public employee rights represent the ultimate quirk in modern constitutional law. Courts are now routinely dismissing case after case alleging retaliation on the basis that the police officer's free speech is not protected speech at all but official job speech for which there is no constitutional protection against retaliation. The erosion of public employee rights under the First Amendment carries with it the ultimate irony: they now have fewer rights than the guys they arrested and placed in jail.