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

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

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

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

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

File your EEOC charge as soon as possible

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

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

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

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

Don't tase me, bro!

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

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

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

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

Pepper-spray in the face may violate Fourth Amendment

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

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

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

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

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

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

Solving the $75,000 question

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

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

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

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

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

Circuit reinstates defamation claim against MSNBC

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

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

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

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

Criminal defendants cannot kick women off the jury

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

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

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

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

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

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

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

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

Rare anti-arbitration victory in 2d Circuit

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

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

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

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