Circuit upholds religious discrimination injunction against NYC

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

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

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

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

Court strikes down two-step interrogation

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

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

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

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

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

JP Morgan Chase prevails in age discrimination case

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

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

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

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

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

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

Inmate cannot sue jail officials for medical violations

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

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

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

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

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

A right without a remedy

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

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

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

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

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

Failure-to-promote claim dies on the vine

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

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

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

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

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

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

No constitutional right to state's evidence for DNA testing

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

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

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

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

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

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

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

Court stops NYPD from retaliating against officers

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

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

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

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

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

A word to the wise on attorneys' fees

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

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

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

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

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

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

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

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

2nd Circuit gives one to the public employees

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

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

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

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

Don't take the law into your own hands

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

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

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

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