Riddle me this

A pro se plaintiff by the name of Riddle beats a large management-side law firm in persuading the Court of Appeals that the trial court should not have dismissed her Family and Medical Leave Act claim.

The case is Riddle v. Citigroup, a summary order decided on December 5. The district court evidently overlooked Riddle's FMLA claim completely when it threw out the complaint. The Court of Appeals finds that the complaint states a claim under Rule 12. According to Riddle, "human resources personnel prevented her from obtaining medical leave and did not allow her to fill out medical-leave applicants, and that she was given notice of her termination in April 2007, immediately after she attempted to obtain leave." These allegations state a claim under the FMLA. It looks like a textbook case, really. But that that does not end the inquiry.

Defendant says that Riddle blew the two-year statute of limitations. Riddle says that her case is governed by the three-year statute of limitations, which requires that the employer "willfully" denied the plaintiff her FMLA rights. Willful means reckless disregard of the plaintiff's rights. The Court of Appeals (Straub, Livingston and Cabranes) says that the allegations plausibly suggest that Citigroup willfully mistreated Riddle. "As such, whether the conduct was 'willful' (and thus, whether the three-year statute of limitations applied) is an issue that should be decided on remand, either by the District Court on summary judgment if there is no genuine issue of material fact, or by a jury if Riddle introduced evidence sufficient to support a finding of willfulness or if the issue turns on questions of credibility."

Citigroup has another defense here. It says that Riddle signed a release in a separation agreement that prevents her from bringing this action. The Second Circuit cannot resolve this defense. Riddle says the release was procured through fraudulent inducement, and that she did not receive adequate consideration in exchange for the agreement. These issues are more appropriately resolved on remand. Let the district court worry about it.

Circuit grants habeas petition in double rape case

I am always amazed when the Second Circuit vacates a state court criminal conviction on constitutional grounds. Not only because Congress has made it harder for federal courts to do this (state courts get the benefit of the doubt when interpreting the Constitution, even if incorrectly), but because the state conviction has already gone through the appellate process in New York and the Appellate Division and maybe even the New York Court of Appeals has already upheld the conviction. The Second Circuit has vacated another conviction, this time on grounds that the defendant's lawyer was ineffective at trial.

The case is Cornell v. Kirkpatrick, decided on December 1. Cornell was convicted of two rapes at the same trial in Ontario County Court. One rape took place in Monroe County, the other in Ontario County, within days of each other. The Second Circuit says that "The Ontario County District Attorney alleged that, because the attack on Victim #2 occurred 'in an automobile that traversed through Ontario County,' he had jurisdiction to simultaneously prosecute both alleged rapes—the one that occurred in Ontario and the one that occurred in Monroe—under New York Criminal Procedure Law § 20.40(4)(g) (the “private vehicle exception”)." Cornell's lawyer did not object when the Monroe County rape went to trial in Ontario County. He should have.

A defendant in New York has a right to be tried in the county where the alleged crime was committed. The prosecution has to prove at trial that the crime took place in that county. This can be a question for the jury, but there was no dispute here; the prosecutor in his opening statement said the crime took place in Monroe County. Now the state is singing a different tune, saying on appeal that the prosecutor was mistaken in his opening statement. The Second Circuit (Newman, Cabranes and Straub) is not buying this nonsense, and it suspects the DA is changing his story because it realizes that a State Court of Appeals ruling (People v. Moore) is directly on point in favor of Cornell (a case, by the way, that everyone seemed to overlook as the criminal case wended through the state system). Judge Straub writes, "We remind the State that the prosecutor plays a special role in our society, unique from that of his adversary at the defendant’s table. The prosecutor is “the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.” The Second Circuit is also withering in its criticism of Cornell's trial counsel: "Although Cornell’s trial counsel presented an opening and closing statement, cross examined witnesses, and presented a defense case with three witnesses, the fact remains that he was completely ignorant of the venue law in New York." 

Anyway, "[h]ad Cornell’s counsel objected to venue on the basis of Moore, the trial court would have been required to submit the issue of venue to the jury and instruct it on the limitation imposed by Moore" at trial. This could not have been a strategic decision by Cornell's criminal lawyer; he simply blew it. The error could have made a difference at trial because "the record demonstrates that the jury, appropriately instructed as to venue, would have easily found by a preponderance of the evidence that the rape occurred in Monroe County." Cornell thus gets a new trial.

Airline exclusion means no private claim for disability discrimination

A disabled woman was shafted by Jet Blue Airways when it did not provide her timely wheelchair assistance at Idlewild Airport in New York City and in Puerto Rico in July 2009, causing her physical and emotional injuries. She sues Jet Blue under the Air Carrier Access Act of 1986 and Title III of the Americans with Disabilities Act of 1990. She loses the case. There is no private right of action under the Air Carrier Access Act, and the complaint also fails to state a claim under the ADA.

The case is Lopez v. Jet Blue Airways, decided on December 1. Let's start with the Air Carrier Access Act, which prohibits airlines from discriminating against "an otherwise qualified individual" because she "has a physical or mental impairment that substantially limits one or more major life activities." This language mirrors the anti-discrimination provision under the ADA. The ACAA does not expressly allow people to sue for damages, so the Court of Appeals (Cabranes, Livingston and Chin) has to decide if the law implies a cause of action, no small task ever since the Supreme Court in 2001 made it harder for the courts to do this.

Prior to 2001, some Courts of Appeal said that you could sue for damages under the ACAA. That was before the Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001), tightened the screws. Since 2001, the Tenth and Eleventh Circuits said that under Sandoval, there is no private claim under the ACAA because the language and structure of that statute manifests no congressional intent to create a private right of action in federal court. The Second Circuit agrees with the Tenth and Eleventh Circuits. Under the ACAA, aggrieved persons may go after the airlines for disability discrimination, but only through an "administrative enforcement scheme designed to vindicate fully the rights of disabled passengers." Since Congress did not explicitly provide for any relief in court, that alternative remedy means there is no lawsuit for Lopez. Congress is allowed to make those choices, and thanks to the Sandoval, there is nothing the courts can do about it.

What about Lopez's claim under Title III of the ADA? No dice here, either. The ADA simply doesn't cover a claim like this. Under Title III, "private entities that are primarily engaged in the business of transporting people" cannot discriminate on the basis of disability in providing "specified public transportation services." But "specified transportation services" is defined under the ADA to exclude aircraft. It does cover bus, rail and any other conveyance. But not aircraft.

The only claim left for Lopez is Title III's prohibition against disability discrimination in "any place of public accommodation," which includes "a terminal, depot, or other station used for specified public transportation," defined to include terminals, depots or other stations only if they are used for "transportation by bus, rail, or any other conveyance (other than by aircraft)." As the Court of Appeals sees it, in conjunction with the aircraft preclusion, "terminal, depot, or other station" must "exclude a facility in which surface or underground transportation is merely an auxiliary function and the facility is primarily devoted to air travel." As such a facility is not a "terminal, depot, or other station" under the ADA, these things are not public accommodations under the statute. I wonder how much the airlines pushed for an airline exclusion under the ADA? Whatever they paid their lobbyists, it looks like the airlines got their moneys' worth.

NYC's campaign finance rules satisfy the First Amendment

Pushing aside recent Supreme Court cases that take a dim view of campaign finance legislation, the Second Circuit holds that the First Amendment does not prevent the New York City Council from regulating campaign contributions in order to avoid the appearance of public corruption flowing from possible "pay-to-play" contributions.

The case is Ognibene v. Parkes, decided on December 22. The Supreme Court has rewritten campaign finance law over the past few years under an expanded view of the First Amendment. These cases include Citizens United v. F.E.C., 130 S.Ct. 876 (2010), a decision that everyone hates because it allows in some instances for unlimited corporate contributions to political campaigns. But New York City forged ahead in regulating contributions, which do the following: (1) people who do business with the City, including lobbyists, are held to more strict campaign contributions than Johnny Average; (2) there are no matching funds for those who do business with the City; and (3) the existing prohibition on corporate contributions are now extended to partnerships, LLC's and LLP's. Are these restrictions constitutional? Yes.

Here's why. First, the Supreme Court distinguishes between limits on campaign expenditures and campaign contributions. Expenditures are hard to limit ("strict scrutiny" test), but the government has more leeway to limit contributions so long as they are "closely drawn to address a sufficiently important state interest." That interest may include the prevention of actual or perceived corruption. The "doing business" restriction is legal under the more lenient standard of review because "the perception of corruption, or of opportunities for corruption, threatens the public's faith in democracy." In enacting this law, the City Council may take into account the common-sense view that people doing business with the City are making contributions in order curry favor with policymakers and regulators. While the plaintiffs who challenge this law argue that the Council needs more concrete evidence of corruption to justify this law, "there is no reason to require the legislature to experience the very problem it fears before taking appropriate prophylactic measures. ... Appellees essentially propose giving every corruptor at least one chance to corrupt before anything can be done, but this dog is not entitled to one bite." (That's district judge Crotty, ladies and gentlemen. Judges Livingston [for the most part] and Calebresi join him in this opinion). In addition, there is some evidence that the largest donors are the ones doing the most business with the City. Donors with business dealings were less than 5.3 percent of the contributors, but they accounted for 21 to 25 percent of all dollars contributors. That's pretty good evidence that the public might perceive a pay-to-play mentality in City politics.

Second, the non-matching contributions are also constitutional. While non-matching does not prevent you from making a contribution, it does minimize the value of that contribution. Encouraging small, individual contributions, the public financing law matches contributions of up to $175 using tax dollars at the rate of 6 to 1. This also discourages the entrenchment of incumbent candidates. As the Court of Appeals interprets Supreme Court authority, these interests are enough to justify the non-matching funds rule for contributors doing business with the City.

Finally, the City law includes a ban on contributions by partnerships, LLC's and LLP's. The First Amendment allows for this prohibition, for two reasons: (1) anti-corruption and (2) to prevent those who run partnerships, etc., from circumventing contribution limits. The anti-corruption focus is obvious to anyone reading this decision. As for anti-circumvention, the government has an interest in preventing individuals from taking advantage of the minimal disclosure requirements such that entity contributions only have to be attributed to a partner or owner when they exceed $2,500. In a footnote, the Court of Appeals explains how you can circumvent contribution limits in the absence of the City's law:

The following examples demonstrate how easily campaign contribution can be bundled to circumvent limits: (1) a real estate developer, his wife, and two executives from his LLC all gave maximum contribution to the same incumbent candidate for City Council; (2) the same developer, his immediate family, his LLC, and officers of his LLC contributed nearly $100,000 in the 2001 and 2005 City election cycles, id. at 32; (3) two real estate developers and their newly-formed LLC gave nearly ten times the amount of donations they had given in the past after initiating a particular project; (4) the owner of a parent company of the construction company that received a contract to build a major transportation hub in Manhattan, his children, and the owner of the parent company’s marketing firm all gave significant contributions to an incumbent candidate for Borough President.

Back to the drawing board

The Court of Appeals has reinstated a First Amendment retaliation lawsuit because the district court did not give plaintiff a fair opportunity to make certain arguments that could have saved the case from dismissal.

The case is Hughes v. Anderson, a summary order dated November 1. Plaintiff was a court officer working from the Unified Court System. He told the Chief Court of the Nassau County District Court that some court officers were leaving their posts early to work other jobs and falsified their time sheets to cover up their departure times. Cases like this are governed by Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that whistleblowing is not protected under the First Amendment if the speech is made pursuant to the plaintiff's official duties. Cases like this are now being routinely dismissed because most relevant work-related speech do grow out of the plaintiff's official duties.

Defendants' lawyers were probably licking their chops when they were assigned to handle this lawsuit, and they immediately began working on a Rule 12 motion to dismiss. The district court threw out the case "because, although Hughes’s alleged report of misconduct involved a matter of public concern, '[n]either the Complaint nor the proposed Amended Complaint adequately allege[d] facts to support the argument that the statement to the Chief Clerk was made outside Plaintiff’s official job duties.'”

There was a problem with the district court's ruling, which prompts the Second Circuit (Leval, Livingston and Lohier) to remand the case to the district court. "The district court erred in dismissing Hughes’s First Amendment claim with prejudice on a ground not raised by a defendant without giving him notice and opportunity to respond, and without affording him an opportunity to demonstrate that any deficiency in his complaint could be cured in an amended pleading. As a general matter (excepting clearly frivolous cases), it is improper for a district court to dismiss a complaint with prejudice for failure to state a claim without giving the plaintiff notice and an opportunity to be heard and to offer an amended pleading." Moral of the story is that the court has to give plaintiff a fair chance to save the complaint from dismissal. If not, the case returns to the trial court for round two.

Summary judgment reversed in First Amendment retaliation case

What do you have to do to win a First Amendment claim around here? The Court of Appeals tells us. Yesterday, I summarized a Second Circuit case that held that a teacher in Westchester County engaged in free speech when she reported child abuse at a former teaching job in Virginia a few years before the Mamaroneck School District denied her tenure in 2007. This blog post will talk about the other issues in the case.

The case is Nagle v. Marron, decided on December 12. The discussion on Nagle's protected speech is here. Management said that it had good reason to deny Nagle tenure because her superiors were thinking about letting her go even before they learned about her free speech. That's a common defense in First Amendment and employment discrimination cases. The Court of Appeals provides guidance in this area, perhaps for the first time, as it cites no cases to support its holding. It is settled law that "an adverse employment action occurs on the date that a decision was formally reached." While "events leading up to a formal decision will, in many situations, be relevant to the analysis of causation," management "cannot insulate itself from liability at the summary judgment stage simply by asserting that an adverse employment decision had in fact already been made, without being memorialized or conveyed to anyone, before the employer learned of the protected conduct." Here, Nagle's superior said "he was leaning" toward letting her go. Judge Calabresi writes that "a jury would be entitled to find that the Virginia events convinced him to follow his inclinations, and thereby played a part in his ultimate decision." But that does not mean the school district gets summary judgment. That supervisors were thinking about letting Nagle go does not mean they had reached a final decision. The free speech could have been the tipping point. As the Court of Appeals says, the jury could find that "the Virginia events convinced [the decisionmaker] to follow his inclinations, and thereby played a part in his ultimate decision." But, again, that's for the jury. By the way, the six week gap between defendants' learning about the protected speech and Nagle's termination is close enough to infer a causal connection.

An interesting sideshow bobs to the surface in this case. The school district says that, to the extent that Nagle's speech in Virginia caused them to terminate Nagle, "it was not the content of the speech that mattered but what they took to be Nagle's violation of school rules in reporting the abuse to the police rather than to her principal." The Court of Appeals is not buying this.The Second Circuit says, "this 'counter,' if anything, is evidence against Appellees' position. Just what Appellees believed about Nagle's conduct in Virginia, and how, if at all, those beliefs influenced their actions may well be issues critical to resolving this case."

The school district also says it was justified in letting Nagle go because she chose a particular book to read to her class without first consulting with the school psychologist. But there is no evidence that school customs or protocols required such a consultation. So the jury may reject that defense. Similarly, the school district says that Nagle sent a child home without speaking to administrators. But a superior testified that Nagle did not violate the rules in doing this. A jury has to decide if these are good reasons to fire Nagle. Other defenses are also rejected in the Second Circuit. Not only is there no evidence that Nagle had ongoing performance problems before she was fired (her performance reviews were "fair to positive"), but a strange reason to justify her termination -- that she ran out of a conference room in tears after hearing from third parties that she was going to be denied tenure -- is not so egregious as to merit dismissal of her case in light of the paucity of evidence that she was a bad teacher.

Nagle did not just sue individuals; she sued the school district. That means she has a Monell claim, which requires proof that the school board fired her pursuant to a policy or custom. You can show a policy if the final decisionmaker pulled the trigger. The school district is the policymaker, but it was the superintendent who made the recommendation to fire Nagle. The school board does not usually override the superintendent's recommendation. The Court of Appeals has never resolved this issue, but it cites an 11 year-old district court case from Alabama that says that a the superintendent may be deemed the "final decisionmaker with respect to personnel appointments" since "his recommendations are essentially those of the government body." So, if the board of education's vote is a formality and a rubber stamp, then the superintendent was delegated policymaking authority under Monell. Other Circuit courts seem to agree with this "cat's paw" theory. The Second Circuit suggests that the district court give this some thought on remand.

Free speech never goes stale

The Court of Appeals has reinstated a First Amendment retaliation suit that alleges that a Westchester County School District retaliated against a teacher who blew the whistle on child abuse a few years earlier, when she was teaching in Virginia. The case includes several important rulings of interest to attorneys who handle public employee retaliation claims. This blog post focuses on the Second Circuit's rulings on whether Nagle engaged in protected speech. The next installment will cover the remaining issues, including causation.

The case is Nagle v. Marron, decided on December 12. When Nagle was teaching in Virginia, she reported to the appropriate authorities that a fellow teacher was abusive to the students. That made the newspapers in Virginia. When Nagle was teaching in Mamaroneck in 2007, her superiors Googled her and learned about the Virginia whistleblowing. After Nagle then complained in a separate incident in Mamaroneck that someone forged her name on a teachers' evaluation, Nagle was then denied tenure. The Court of Appeals (Calabresi, Raggi and Gleeson [D.J.]) rules as follows:

1. Nagle received a less than satisfactory performance review, which she refused to sign. But someone else signed her name! The school investigated the alleged forgery, and figured out who probably did it. Nagle claims this report of the forgery is protected under the First Amendment, and that this report led to her termination. The forgery report is not free speech, the Court of Appeals holds. These cases are not easy to win in the Second Circuit, which held in Weintraub v. Board of Education (2010) that speech is unprotected if it is "part and parcel" of the plaintiff's ability to do her job. This flows from the Supreme Court's holding in Garcetti v. Ceballos (2006) that the First Amendment does not protect speech that is made pursuant to your official job duties. The Judge who writes the Nagle decision dissented in the Weintraub ruling, arguing that the Court of Appeals was too-narrowly interpreting Garcetti. But Judge Calabresi does not have the opportunity to develop that dissent in Nagle. That's because "the forgery incident did not implicate a matter of public concern," a threshold issue in these cases. "No authority supports Nagle's argument that reporting an alleged crime always implicates matters of public concern. The forgery of Nagle's signature, even if such conduct were criminal, had no practical significance to the general public." If the public would not care about the speech, then it's not a matter of public concern under the First Amendment.

2. Nagle does prevail on her other speech claim, the one involving the reported child abuse in Virginia. The district court said this was not a matter of public concern because the speech was four or five years old. The trial court said that while that speech may have implicated a matter of public concern way back when in Virginia, it lost its vitality under the First Amendment by the time Mamaroneck school officials found about it, i.e., it was "old news." The Court of Appeals is flummoxed by this reasoning. It looks like the trial court mixed up the "public concern" analysis with the question of whether that speech led to plaintiff's termination. Here's the reasoning:

Whether speech pertained to a matter of public concern and whether it was uttered in the speaker’s capacity as a private person are not facts that change over time. A teacher’s expressive conduct made in the course of working for a candidate’s political campaign, for instance, would constitute protected speech even if the candidate lost and his candidacy therefore ceased being a matter of immediate public concern. And the speech would remain protected if the teacher moved to an area where the candidate had not been on the ballot. The First Amendment protects precisely such public participation, both at the time it occurs and ever after.

Although there is no case on point that says that free speech does not wane over time, that does not entitle defendants to qualified immunity. You don't need a case on point to show that the law is clearly established such that management was on notice that it was violating the First Amendment in a retaliation case. An official "who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful."

Finally, the trial court rejected Nagle's First Amendment claim relating to the child abuse because Nagle had violated protocol in reporting the abuse. Even assuming that Nagle did violated protocol in Virginia, that is no basis to reject her claim under the First Amendment. There is no binding authority for the proposition that the First Amendment only protects speech that the plaintiff utters in line with protocol. While the failure to comply with protocol may "give rise to an alternative, non-retaliatory ground for an adverse employment action" and therefore predicate a successful causation defense, that does not mean the speech is not protected under the Constitution.

In the end, Nagle will get a trial on her First Amendment claim from the alleged retaliation for her speech in Virginia. The remaining issues are the subject of tomorrow's blog post.

You cannot sue the prosecutor for lying to County Court

We start with the proposition that you cannot sue the prosecutor, who has absolute immunity from suit so long as the misconduct took place in pursuit of his official duties. Doesn't matter what he does, doesn't matter what he says. You can't sue him, and if you don't like it, lump it.

The case is Flagler v. Trainor, decided on November 21. Flagler was a domestic violence victim who was the chief witness at trial her ex-boyfriend. Trainor was the assistant district attorney who was prosecuting the abuser. Trainor swore to the local court that he thought Flagler was going to leave the area to avoid testifying against her abuser and that Flagler was not returning his phone calls or cooperating with the case. Following the material witness hearing, the County Court decided to take Flagler into custody and held her overnight without bail. Her cell phone was also confiscated. Flagler says that Trainor misled the County Court about Flagler's alleged refusal to testify and that Flagler had every intention to appear at trial. According to the lawsuit, Trainor's lies cost Flagler her liberty, at least temporarily.

Flagler cannot Trainor under the absolute immunity prohibition. Flagler tries to get around this by arguing that Trainor was actually acting as a complaining witness and not as an advocate. This argument has some basis in Supreme Court authority, but it does not work here. The Court of Appeals (Wesley, Calabresi and Lynch) says that "seeking a material witness order is within the prosecutor's 'function' as an advocate. A prosecutor employs prosecutorial discretion when determining whether to seek such an order."

But Flagler may be able to go after Trainor in other ways. Absolute immunity does not shield prosecutors from suit if they defame someone. Trainor told the press that Flagler was "hiding out" before the trial. The defamation claim is reinstated. So is Flagler's claim that Trainor unlawfully accessed her voice mail when Flagler's cell phone was seized. That's because absolute immunity does not shield prosecutors from investigatory acts.

No false arrest claim in prostitution sting

A gay male who flirted with an undercover police officer in an adult video store was arrested for prostitution after the undercover officer said they could engage in oral sex for money. The plaintiff agreed with this arrangement, kind of, but then he quietly decided against it as they walked out of the store together. The charge against plaintiff was dropped. He sued for false arrest. The district court said the case can go to trial, but the Court of Appeals reverses and says the officer has qualified immunity.

The case is Pinter v. City of New York, a summary order decided on November 18. The Second Circuit goes into detail about how these guys flirted with each other in the store, and in determining whether plaintiff has a false arrest claim, it analyzes the alleged agreement for oral sex with the precision of a business transaction. It seems that plaintiff was looking over some adult videos when the undercover cop smiled at him. They began talking and plaintiff mentioned that he liked oral sex. Undercover said his car was nearby. They left the store together and that's when undercover said he'd pay Pinter money for oral sex. Pinter by this point  silently decides he wants nothing to do with the undercover cop but by coincidence they head in the same direction: Pinter to his apartment and undercover to his car.


Funny thing about false arrest. The police can get it wrong and you still can't sue. Even if the police miscalculated, if they did so in good faith and had reason to believe that a crime was underway, they cannot be sued under qualified immunity. Criminal charges were dropped against Pinter, but the Court of Appeals (Cabranes, Winter and McLaughlin) says the district court should have dismissed the false arrest and malicious prosecution claims.

Like I said, the Court of Appeals looks at the oral sex for money deal like a Wall Street transaction. That's because the district court said that Pinter may have a claim because he and the undercover began talking about sex before the undercover offered to pay Pinter. Here's part of the analysis (the undercover cop is referred to as UC31107):

We do not think the apparent existence of an “agreement for sex gratis” prior to UC 31107’s
offer of monetary compensation has nearly the impact that the District Court suggests. First, prior to UC 31107’s offer, neither party had yet explicitly stated an interest in engaging in sexual activity with the other. Second, and of more significance, when UC 31107 offered Pinter the cash, both Pinter and the undercover officer had already expressed to each other a specific desire to perform oral sex. Following UC 31107’s monetary offer and Pinter’s seeming compliance, UC 31107 could have reasonably believed that Pinter had agreed to be compensated in exchange for allowing UC 31107 to act on his desire to perform oral sex on Pinter.

Other evidence also supports qualified immunity for the officer. Read this closely. It tells us that false arrest claims are hard to pursue and that qualified immunity provides police officers with a generous standard in seeking summary judgment. The Court also makes an assumption about gay men and why they enter adult video stores.

it was not plainly irrational or incompetent for UC 31107 to assume that Pinter visited the adult section of Blue Door in search of sexual gratification of one kind or another. Second, Pinter left the store with UC 31107 and without having purchased any adult videos. Third, as they left the store, Pinter accompanied UC 31107 on a walk towards UC 31107’s car—the place where the sex act was to occur. At this point UC 31107 had no way of knowing that Pinter had privately decided not to pursue any sexual activity with UC 31107, and that he was merely headed in the same direction as UC 31107. Nothing in Pinter’s behavior or conversation could reasonably lead UC 31107 to conclude, in the circumstances presented, that Pinter was not interested in receiving money for sexual activity. Finally, on their brief walk together following the mention of money for sex, the pair continued to flirt with one another—even if at UC 31107’s instigation—and struck up an intimate sexual conversation. Putting all of these facts together, we do not think that it was unreasonable or incompetent for UC 31107 to have assumed that Pinter intended to engage in oral sex with him in return for financial compensation.

This is why lawyers don't represent prisoners

Think this guy is going to take on any more pro bono cases? I doubt it. Poor fellow represented a prisoner in federal court, and he actually convinced the jury that a Rastafarian's religious freedom rights were violated when prison guards tussled with his dreadlocks. Jury gave his client $1.00 in damages. The lawyer recovers $1.50 in attorneys' fees. The Court of Appeals upholds the $1.50 fee award.

The case is Shepherd v. Goord, decided on November 15. In the mid-1990s, when it was open season on prisoners in the U.S. Congress, the Prison Litigation Reform Act was enacted. It was intended to reduce the number of inmate lawsuits. One way to do that was to make it more difficult for attorneys to recover attorneys' fees in successful cases. Take away the attorneys' fees, and the attorneys will take a pass.

Congress was so eager to enact the PLRA once the Republicans took over the House and Senate that no one bothered to make sure the statute was written clearly. (In fairness, President Clinton signed the PLRA into law, so this is a bi-partisan deal). Under the PLRA, if the inmate wins money at trial and is therefore a prevailing party, his lawyer gets attorneys' fees. But, "if the award of attorneys' fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant." This is not the clearest language in the world. What it really means is that if the prisoner wins the case, his lawyer's fees cannot exceed 150 percent of the judgment. That's because the defendant is not responsible for fees beyond 150 percent. Since only the defendant pays out the attorneys' fees award, this provision essentially sets a 150 percent cap on fees.

So, if the jury awards an inmate $50,000, counsel can get up to $75,000 in attorneys' fees. Not too shabby. But here, counsel prevailed at trial, but the jury only awarded his prisoner client a dollar. Counsel filed an attorneys' fees application in the amount of $99,000. But the trial court said -- and the Court of Appeals (Raggi, Miner and Sack) agrees -- that counsel may only recover $1.50 in attorneys' fees.The Court of Appeals knows this is a harsh result for the lawyer. But the Second Circuit says that "whatever arguments can be mounted for against the policy choice reflected in [the PLRA], particularly as applied to pro bono counsel, the proper forum for that debate is Congress, not the courts." If you don't like the result, the next train to Washington leaves in 15 minutes.

Ledbetter Act does not get plaintiff a new arbitration hearing

The Court of Appeals rejects an effort to vacate an adverse arbitration award that the aggrieved employee says violated the Lilly Ledbetter Act of 2008, which retroactively allows courts to consider what the Supreme Court used to deem stale allegations of pay discrimination.

The case is Schwartz v. Merrill Lynch, decided on November 1. In Ledbetter v. Goodyear Tire, 550 U.S. 618 (2007), the Court said that pay discrimination claims begin to accrue when management puts in place the discriminatory pay scheme, and that the statute of limitations is not revived each time the female employee gets another paycheck arising from that scheme. In other words, the female employee cannot challenge the unfair paychecks more than 300 days after management set the discriminatory pay scale. Congress overturned the Ledbetter decision in the Lilly Ledbetter Fair Pay Act of 2008, which says that an unlawful employment practice occurs each time the employee gets the paycheck tainted by the discriminatory scheme, even if that scheme happened a few years ago. Unlike many laws that overturn Supreme Court rulings, the Ledbetter Act has retroactive application.

In this case, the plaintiff sued Merrill Lynch for pay discrimination. Her case went to arbitration. The arbitrators ruled that Schwartz did not prove her claims of discrimination. One of the reasons she lost was that the arbitration panel for the most part would not consider events that predated her April 2, 2001 settlement and release from prior claims of discrimination (unless the evidence predated that date by six months).

Schwartz next asked the federal court to vacate the arbitration award as clearly contrary to the Ledbetter Act, which has retroactive application and, according to her, required the arbitrators to consider evidence of discrimination predating April 2001. The district court denied this motion, and the Court of Appeals (Kearse, Sack and Katzmann) affirms. Any employment lawyer will tell you that it is very, very hard to overturn an arbitration decision. You can do so if the decision is in manifest disregard of the law, but that is a tough hurdle to climb. Here, the arbitrators simply interpreted the April 2001 settlement in limiting the introduction of evidence, and they extended some flexibility into the process by considering evidence of discrimination predating that release by six months. The settlement contained the usual language saying that plaintiff was waiving any claims accruing through that date. While Congress amended Title VII through the Ledbettter Act, the arbitrators did not plainly ignore that law, as it had not been passed at the time of Schwartz's arbitration. In making its evidentiary rulings, the arbitrators did not exceed their broad discretion to decide her case.

No police liability in neighborly dispute

It's a fact of life these days for civil rights lawyers that false arrest claims are hard to win. In this case, a neighbor called the police on plaintiff for doing something wrong. In fact, plaintiff was doing something else wrong. The fact that plaintiff was doing anything wrong at all means he cannot sue for false arrest.

The case is Pacicca v. Stead, a summary order decided on November 14. It looks like Pacicca and Stead were neighbors who hated each other. Stead called the police on Pacicca when he saw Pacicca damaging the grass on his property. The police acted on that complaint. Pacicca said there was no probable cause because, in fact, the property belonged to the City of White Plains, not Stead. So it's not an arrest for damage to private property but an arrest for criminal tampering. The Court of Appeals says that "a reasonable officer could believe that a person repeatedly moving rocks from city property gives rise to probable cause to arrest and prosecute that person for criminal tampering." The Second Circuit (Jacobs, Sack and Raggi) does not say this in the opinion but the law has developed to the point that the police may arrest you so long as you were committing any crime at all, even if they are mistaken about the initial reason for the arrest.

The case did go to trial on the malicious prosecution claim. Pacicca challenges the jury charge, which says that you cannot sue the police if the prosecutor exercised independent judgment and played an active role in initiating the criminal prosecution. The charge also said that if the officer provides the prosecutor with false information about the charge, then the officer may be sued after all. This was the correct charge, the Court of Appeals says. That's because the prosecutor testified that he consulted with Stead and independently decided to prosecute Pacicca. So that even if the officers gave the prosecutor false information, the prosecutor's independent actions get them off the hook.

Stuck in the cubicle

Retaliation claims under Title VII require the plaintiff to show that management's response to her complaints about discrimination would deter a reasonable person from against speaking out in the workplace. That's the rule under Burlington Northern v. White, 548 U.S. 53 (2006), and it's a generous one. But it won't get you a trial in every case.

The case is Roncallo v. Sikorsky Aircraft, a summary order decided on November 21. What does it take to shut up workers who complain about discrimination? And what does management have to do for plaintiffs to sue for retaliation? When the Supreme Court in the Burlington Northern case came up with the legal standard governing these cases, it created a separate "adverse employment action" from that utilized in the more traditional disparate treatment cases, which require a material change in job conditions (such as termination, demotion, loss of pay) in order to prove the plaintiff suffered discrimination. Retaliation claims became a little easier for plaintiffs to pursue under this standard. And Burlington Northern contradicted the view -- held by many -- that the Supreme Court is comprised of pro-corporate Justices.

Not every retaliation case proceeds to trial, though. In this case, the plaintiff said that he was a retaliation victim because he was temporarily moved from an office to a cubicle. No one wants to work in a cubicle if they can work in an office, and to use a baseball analogy, going from an office to the cubicle is like going from the major leagues to a AA minor league team in Duluth. To use a rock and roll analogy, it's like going from Madison Square Garden to Joe's Pub in rural Wyoming. But perhaps these analogies try too hard. These downshifts are substantial, but you get the point. Going from office to cubible is not considered a dramatic job change. The Second Circuit (Sack, Wesley and Katzmann) disposes of this argument in short order. The temporary move to a cubicle is not an adverse action.

Warrantless entry into house is legal under Fourth Amendment

The Court of Appeals has granted summary judgment to police officers who entered someone's home without a warrant. The Second Circuit rules that the officers did this under exigent circumstances as they reasonably believed the plaintiff was inside the house and was armed and dangerous.

The case is Montanez v. Sharoh, a summary order decided on November 9. The Court of Appeals (Katzmann, Wesley and Walker) actually reversed the district court, which granted summary judgment to plaintiff Montanez in this case. That the Court reverses that ruling in favor of plaintiff and instead grants summary judgment to the officers on the basis of qualified immunity in an unpublished summary order only shows how routine rulings like this have become. Last year, Montanez was rejoicing in victory. Today, it's the agony of defeat.

So what happened? The warrantless entry was prompted by a "child welfare check" by the Department of Children and Families. Before they entered the house, the officers were told that Montanez was "armed and dangerous and a convicted felon wanted for weapons and narcotics violations. They were also told to use 'extreme caution' if they located Montanez." When they entered the house, the officers also reason to believe that Montanez was inside. (His presence inside the house creates an exigent circumstance). While plaintiff was a fugitive and no one answered when the police came-a-kocking and called him on the phone, the lights were on at 1:00 a.m. and a side door was unlocked. The police also reasonably thought a child was inside the house (she was at grandma's earlier that day) and that Montanez posed a risk to her. In fact, no one was home. No matter. When the cops entered, they found (and seized) an Uzi and some ammunition. Of course, that stuff was illegal. But the police were legally able to enter the house without a warrant under their objectively reasonable belief that Montanez was inside and posed a serious risk to his children, so the police win the case.

Ghostwriters in the sky

The general view is that lawyers cannot ghostwrite legal pleadings and other documents for pro se litigants. That's because courts give pro se parties the benefit of the doubt in drafting inartful documents, and they will benefit from that leniency even if a lawyer is helping out behind the scenes. The Court of Appeals is now saying that lawyers who ghostwrite pro se documents are not violating the professional responsibility rules.

The case is In Re Liu, an attorney disciplinary action decided on November 22. This immigration lawyer was disciplined by the Second Circuit for various screw-ups. But the Second Circuit decided that counsel should not be sanctioned for helping to draft documents behind the scenes for pro se litigants.

District courts have been on the lookout for ghostwriters. Recently, one judge in the SDNY suspected that a lawyer was actually drafting the papers for a pro se litigant. The judge said, "The court remains convinced that plaintiff has had the assistance of an attorney in preparing the exceptionally detailed and very lawyerly pleading — utterly atypical of a pro se pleading — that is the subject of this motion. The original complaint also bore the hallmarks of a hidden attorney. If the court ever learns the identity of this attorney he  or she will be reported to the relevant Departmental Disciplinary Committee and to the Grievance Committee of this Court." Ochei v. Mary Manning Walsh Nursing Home Co., 2011 U.S. Dist. LEXIS 20542, 20-21 (S.D.N.Y. Mar. 1, 2011)

Looking at this issue afresh, the Court of Appeals (Calabresi, Wesley and Sack) notes that "a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct. ... On the other hand, a number of bar association ethics committees have been more accepting of ghostwriting." Some bar associations require the ghostwriting attorney to disclose his role to the court and opposing counsel. Others say that the pro se litigant will not get the benefit of the doubt in these circumstances because her papers will read more professionally. The Second Circuit thus observes, "in light of the ABA's 2007 ethics opinion, and the other recent ethics opinions permitting various forms of ghostwriting, it is possible that the courts and bars that previously disapproved of attorney ghostwriting of pro se filing will modify their opinion of that practice."

The attorney at issue in this misconduct proceeding will not be sanctioned for ghostwriting. The Court of Appeals defers to the experts in this area and suggests that the man behind the curtain can draft legal papers for unrepresented parties without any fear of discipline.

Under these circumstances, we conclude that Liu’s ghostwriting did not constitute misconduct and therefore permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this Court. We also conclude that there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from the Court or that she otherwise acted in bad faith. The petitions for review now at issue were fairly simple and unlikely to have caused any confusion or prejudice. Additionally, there is no indication that Liu sought, or was aware that she might obtain, any unfair advantage through her ghostwriting. Finally, Liu’s motive in preparing the petitions – to preserve the petitioners’ right of review by satisfying the thirty-day jurisdictional deadline – demonstrated concern for her clients rather than a desire to mislead this Court or opposing parties.

Apples and oranges do not make a Title VII claim

Employment discrimination cases are harder to win the plaintiff has done something wrong. The plaintiff can say that she was singled out and that management looked the other way when male workers screwed up, but these disparate treatment cases face a high hurdle, and the Second Circuit is not too fond of them.

The case is Desir v. City of New York, a summary order decided on November 2. Desir was a probationary teacher who got unsatisfactory ratings for the 2004-05 school year and was relieved of his duties. The Second Circuit (Livingston, Walker and Straub) summarizes Desir's case: "Desir principally relies on the fact that he was both the only African-American teacher of the five who received unsatisfactory ratings for the 2004-2005 school year and the only one of those five who was fired." Now, if you are not that familiar with Title VII law, this might seems a good case. Desir was singled out, right? What about the teachers who got unsatisfactory ratings who weren't fired?

The problem with Desir's case is that the white teachers were not similarly-situated to Desir. They are not comparable because these other teachers were all tenured. Desir was a probationary teacher. He therefore was not subject to the same performance standards as the other teachers. In order to win a disparate-treatment case like this, you have to be "subject to the same performance evaluation and discipline standards and engaged in comparable conduct." Since Desir was a newer teacher still on probation, he is held to different standards to the tenured teachers who got unsatisfactory ratings. As far as the Court of Appeals is concerned, this is apples and oranges.

Desir also sued under the First Amendment. He cannot do so because the speech he claims prompted his retaliatory termination was not on a matter of public concern. It was a personal matter. "Although Desir argues he addressed organizational problems with the home instruction program and not just personal matters, his speech fundamentally concerned his own entitlement to privileges as a home instructor and therefore cannot be considered to have encompassed matters of public concern."

$1 million punitives award in discrimination case cut down to $50,000

A federal judge has reduced a $1 million punitive damages award to $50,000 following a jury trial in which a black former employee of Memorial Sloan-Kettering Hospital proved that management retaliated against him for complaining about racial discrimination in the workplace.

The case is Chisholm v. Memorial Sloan Kettering Cancer Center, 2011 U.S. Dist. LEXIS 130089 (S.D.N.Y. Nov. 3, 2011). Chisholm convinced the jury that a supervisor, Adamec, punished him for speaking out about workplace discrimination. This led to Chisholm's termination. The jury awarded Chisholm more than $230,000 in back pay and authorized the judge to award him front pay, or future lost income. The jury also awarded plaintiff a million dollars in punitives under the New York City Human Rights Law. That million dollar award has been remitted to $50,000.

First, Judge Marrero awarded $102,000 in front pay, through 2014. Chisholm wanted front pay through 2020, when he turns 65. But the court said that awarding front pay for the next nine years would be speculative and that Chisholm probably would have been fired long before then because of performance deficiencies. Judge Marrero says:

While the Court does not contest the jury's finding that the April 2007 log-sheet incident was not the true reason for Chisholm's termination, Chisholm's behavior in connection with that incident is nonetheless relevant evidence of Chisholm's inappropriate workplace demeanor. That Chisholm had retained transportation department documents in his locked desk drawer and indicative Defendants could troubling justifiably regard as of behavior increasingly erratic. Under these circumstances, the Court concludes that it is unlikely that Chisholm would have remained employed by Sloan-Kettering through 2020.

So, while the jury said the log-sheet incident was not the real reason for plaintiff's termination (and that the real reason was retaliation), the court uses that incident as a means to limit Chisholm's front-pay award.

On punitive damages, the jury awarded them because of Adamec's reprehensible behavior. But the jury was also told that the hospital would pay out the award under the New York City Human Rights Law. The court says the award shocks the judicial conscience. Even though the hospital pays the award, the court cites cases holding that a punitive damages award cannot "be so high as to result in the financial ruin of the defendant." Of course, this award would not ruin the hospital, but it would certainly ruin Adamic were he to pay the award. He doesn't though. While Chisholm's lawyers argued that this large award would deter an institution such as Sloan-Kettering from doing this again, the district court rejects that argument as lacking any support in case law. The court concludes, "While Adamec's conduct was certainly reprehensible, as the jury found, it did not involve violence or the threat of violence. Nor did it involve racial slurs or other offensive language. Moreover, an award of $50,000 represents a significant financial hardship to an
individual defendant."

NYC wins Occupy Wall Street lawsuit. Protesters cannot re-enter Zuccotti Park with tents

A State Supreme Court Justice has ruled that the City of New York may prevent the Occupy Wall Street protesters from bringing tents and sleeping bags and other things into Zuccotti Park, where the OWS protests have taken place since September 17, 2011. The ruling denies the OWS request for a temporary restraining order.

The case is Waller v. City of New York, decided on the afternoon of November 15. As everyone knows, the OWS protesters have camped out at Zuccotti Park in lower Manhattan to protest the vast inequality of wealth in this country and other deficiencies of the capitalist system. For many protesters, the park was a home away from home. I visited the park in mid-October and found a lively scene with hundreds of people holding signs, reading books, playing guitar, pounding on drums and generally hanging around.  I don't know how these people planned on staying there through the winter, but it's been a mild Autumn and the place was wall-to-wall people with a lot of tourists peeking around as well.

After New York City kicked everyone out of the park in the early-morning hours of November 15, the protesters brought an Article 78 petition seeking to continue with the tents and other gear that made the park a permanent protest location. In rejecting the restraining order, Justice Stallman noted that the park is a privately-owned public access plaza that is open 24 hours a day, unlike other city parks, which close at 11:00 p.m. The Court also noted that the park remains open to the protesters so long as they don't bring in all their stuff. Summarizing the parties' positions, the Court said:

The owner of Zuccotti Park has represented that, after cleaning and restoration of Zuccotti Park, it will permit the Occupy Wall Street demonstrators to reenter the Park and to resume using it, in conformity with law and with the owner's rules. Petitioners contend that, under the First Amendment, Brookfield's rules are not valid. Petitioners assert that, given the enactment of the rules after the demonstrations began, the rules targeted Occupy Wall Street.

The Court adds that "the owner of Zuccotti Park had not previously published rules regulating its use by the public." This allows the plaintiffs to argue that the rules were made up on the fly to get rid of OWS in violation of the First Amendment. After assuming that the First Amendment applies to this park, the Court sides with the City of New York. Ultimately, this case turns on "time, place and manner," a branch of First Amendment case law that allows the government to regulate speech on public property so long as the rules are not intended to stifle the political message and the demonstrators have ample alternatives to promote that message.

Here, [plaintiffs] have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment. To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner's rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.

In short, "[t]he [plaintiffs] have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely."

This case does not go away, however. This ruling only addresses the temporary restraining order. The City has 30 days to further answer the petition so the Court may issue a final ruling on the merits. 

First Amendment does not protect employee speech to newspaper and public board

The Court of Appeals holds that a Vermont woman who suffered retaliation after speaking to the newspaper and testifying before a public board about job-related matters does not have a claim under the First Amendment because her speech was not protected under the Supreme Court's Garcetti decision, which holds that speech is unprotected if the plaintiff made it pursuant to her official job duties.

The case is Bearss v. Wilton, decided on November 3. This is a summary order, so the Court does not provide all the facts, but here is what happened: Debra Bearss made two statements: (1) she spoke to the newspaper "rebutting allegations that former city officials had deleted public documents in violation of state law," and (2) she gave testimony "at a Board of Civil Authority hearing regarding Bearss' job performance in which she rebutted allegations that employee benefits had been improperly made by the former city treasurer." Bearss was the City of Rutland's information technology coordinator.

As for the newspaper comment, the Second Circuit (Katzmann, Winter and Wesley) agrees with the district court that plaintiff's speech is not protected because she "was acting as an employee with first-hand knowledge of the City's computer use when she responded to the reporter's inquiries." It was her job to speak to the newspaper in that a city memo said that "any computer issues need to be addressed to Debra Bearss, IT Coordinator." This was comparable to an official communication and therefore not citizen speech.

As for the public hearing testimony, this issue is more complex. Bearss argues that her comments actually reflected her policy disagreements with the City regarding employee benefit decisions. She also says the speech addressed potential malfeasance by the former city treasurer and she therefore spoke as a private citizen. But the Second Circuit sees it differently: "the record supports the conclusion that Bearss' statements were motivated by personal interest in responding to criticism of her job performance and not motivated by a a desire to 'advance a public purpose.'" As there is no citizen analogue to Bearss' speech in that her statements "were made in a forum not available to citizens who are not employees of the City of Rutland," she did not engage in free speech, and the case is dismissed.

Sex-plus Fair Housing Act claim survives dismissal

Here's what happened to the plaintiff: he went to look for an apartment in Queens. Plaintiff is an unmarried male. The Complaint says the Co-op Board has a policy of refusing to sell to "men who are single." According to the lawsuit, "this discriminatory conduct was a result of a bad experience with a previous male tenant who threw loud parties and smoked marijuana." Does this guy have a case under the Fair Housing Act?

The case is Lax v. 29 Woodmere Boulevard Owners, __ F. Supp. 2d ___, 2011 U.S. Dist. LEXIS 107546 (EDNY Sept 23, 2011). The Fair Housing Act prohibits discrimination on the basis of sex, among other things. This is a "sex-plus" claim, meaning the plaintiff seeks relief because the discrimination was based on his gender plus another characteristic, i.e., he is a single male. This seems to be a case of first impression. The district court says that Lax can bring the lawsuit. But it does so after reviewing Title VII cases involving "sex-plus" discrimination in employment. If Title VII recognizes sex-plus cases, why not the Fair Housing Act? Judge Bianco of the Eastern District of New York makes two observations:

First, "'sex-plus' discrimination claims are not solely limited to women and have been brought by men." Second, "gender plus marital status, the very sub-class alleged by Lax, has been recognized as a protected category in numerous discrimination cases. Although none of these cases were in the context of the Fair Housing Act, the Court finds that the Supreme Court and Second Circuit jurisprudence on 'sex-plus' claims under other discrimination statutes applies with equal force to the language of the FHA." One of the leading cases in this area is Back v. Hastings on Hudson School District, 365 F.3d 107 (2d Cir. 2004).

After Judge Bianco finds that the FHA recognizes this claim, he then holds that the Complaint states enough facts to survive a motion to dismiss. Lax did everything he was supposed to in trying to buy the apartment. It was then placed back on the market when the Co-op Board killed the deal. And, of course, someone on the board said that there was "discriminatory conduct again men who were single ... which was commonly known among building residents." Since the law does not require that Lax prove that the board denied any sale to comparable female applicants, the lawsuit may proceed.

Bergstein & Ullrich settle First Amendment public assembly case

City of Kingston agrees to pay $25,000 to aggrieved activists

Kingston Times
October 20, 2011
By Jesse Smith

The City of Kingston will pay a locally based pro-Palestinian activist group $25,000 to settle a lawsuit alleging that police violated their First Amendment rights when they were turned away from a 2008 celebration of the founding of Israel in a public park.

According to Stephen Bergstein, attorney for the group Middle East Crisis Response, the agreement was worked out on October 11 just as jury selection was getting underway in U.S. District Court in Albany before Judge Mae D'Agostino. In addition to the $25,000 settlement, the terms of the deal call for a meeting between representatives from the group and incoming Kingston Police Chief Egidio Tinti to discuss how the department will handle similar issues going forward.

"It's one thing to give the plaintiffs some money," said Bergstein. "It's another to have the chief entertain feedback from the plaintiff to prevent this from happening again."

The lawsuit stems from a May 2008 incident at a rally organized by the Ulster County Jewish Federation to celebrate the 60th anniversary of the founding of the Jewish state. About a dozen members of MECR showed up at Gallo Park in downtown Kingston to stage a counter-demonstration. When a shouting match erupted between the two sides, Bergstein said, Kingston cops resolved the situation by removing the MECR contingent from the park and moving them to a spot between Mariner's Harbor restaurant -- out of sight of the pro-Israel faction. When a few of the counter-demonstrators tried to return to Gallo Park individually to pass out leaflets, they were escorted out by police. Bergstein added that the MECR supporters were misled by police to believe that the park was not open to the public for the duration of the rally.

Bergstein said that police overreacted to the heated verbal exchange between the factions and in so doing violated the activists' rights to make their views known.

"I really feel like the police jumped the gun," said Bergstein, who noted that most of the MECR contingent was over age 60. "There was no threat to physical safety."

WDNY gives green light to fees-only lawsuit under Title VI

This case will be of interest mainly to employment lawyers. A federal judge in the Western District of New York finds that a plaintiff who won her State law discrimination claim in the State Division of Human Rights may bring a lawsuit in federal court in order to recover her attorneys' fees under Title VII. The attorneys' fees-only lawsuit is permissible.

The case is Ballard v. HSBC Bank, ___ F. Supp. 2d ___, 2011 U.S. Dist. LEXIS 123661 (WDNY Oct. 26, 2011). Title VII says that Federal courts have jurisdiction over any actions "brought under this subchapter." The court frames the issue as follows: "whether Ballard's claims solely for attorney's fees and costs are 'actions brought under this subchapter,' or, posed differently, whether Ballard can recover costs arising out of administrative and state proceedings." The answer is yes. Judge Skretny agrees with the Seventh, Eighth, Ninth and Tenth Circuits, which have already addressed this issue. (The Fourth Circuit went the other way on this issue). As the Second Circuit has not yet addressed this issue, this is an important case.

Cases brought solely for attorneys' fees are in fact actions brought under Title VII. Ballard could not seek attorneys' fees in the State Division of Human Rights, which ruled in her favor on the racial discrimination claim, awarding her $35,000 for pain and suffering. So there is no res judicata problem.

What makes this case unique is that Ballard prevailed in the State Division only on her New York State Human Rights Law claim, which does not provide for attorneys' fees. The State Division did not make reference to her Title VII claim, even though she did dual-file her discrimination charge with the State Division and the EEOC. Title VII, of course, does provide for attorneys' fees. The Western District of New York says that Ballard did what she was supposed to in filing in the State Division, and State and Federal discrimination claims are essentially the same animal. The Court concludes that "if a party is successful in the very action that Title VII referred her to and required her to invoke (i.e. the Division proceedings), she will accordingly be deemed a 'prevailing party' under that statute. This is true, in part, because the elements proving a discrimination claim are virtually identical under federal and state anti-discrimination law."

$500,000 Title VII verdict flies out the window

The Court of Appeals has rejected as baseless a Title VII retaliation verdict that awarded a security officer at the Indian Point nuclear power plant $500,000 in punitive damages. In doing so, the Second Circuit provides guidance on the meaning of Title VII's requirement that a retaliation plaintiff prove that he suffered an "adverse employment action." While the Second Circuit has issued favorable rulings on the "adverse action" question over the last few years, this one goes the other way.

The case is Tepperwien v. Entergy Nuclear Operations, decided on October 31. Tepperwien was a security officer at Indian Point in Westchester County. A male co-worker made sexual advances toward Tepperwien, who complained about this to management. Following this complaint, Tepperwien found himself on the hot seat as management began questioning him about various work-related incidents and filed counseling letters, which Tepperwien claimed were adverse actions sufficient to dissuade any reasonable employee from complaining about sexual harassment again. Plaintiff ended up quitting his job over this retaliation.

Here's what management did to Tepperwien after he complained about the harassment: the facility issued a "factfinder" when someone thought that Tepperwien has not reported that a gas mask was missing. Factfinders are common Q and A sessions, but not quite counseling sessions. Tepperwien said he had done nothing wrong, but he got a counseling letter over this. Another factfinder concerned management's concern that Tepperwien allowed an intoxicated employee onto the site. A month later, when Indian Point needed additional security, Tepperwien was scheduled to work with his harasser; he agreed, however, to take a different shift. Then, at a meeting of the security force, Tepperwien's supervisor gave him the evil eye after announcing that he did not like some of the workers. Plaintiff was then slapped with another factfinder after he agreed to keep an eye on someone's truck parked on the property and then asked his successor to also monitor the vehicle. Plaintiff then quit his job because he could not take it anymore. But he did write in his exit survey that he would consider working for the company again and was satisfied with his job.

In the district court, Judge Seibel took away the jury verdict, wiping out the $500,000 punitive damages award. (The jury awarded no compensatory damages). The Court of Appeals (Katzmann and Chin) affirms, and Tepperwien once again watches half-a-million dollars fly out the window.

After providing a good summary of the state of Title VII retaliation law, the Circuit says that all the bad stuff that happened to plaintiff was too trivial to dissuade a reasonable employee from complaining about sexual harassment, and that these incidents were not even enough in the aggregate to create an adverse action. Not only were the "factfinders" nondisciplinary and common occurrences at Entergy, but Entergy had good reason to initiate the factfinders such that "even assuming Tepperwien acted perfectly appropriately in all three incidents, there certainly was good reason for Entergy management to at least look into these situations." And, while factfinders may lead to discipline, Tepperwien was not disciplined in connection with these incidents. Moreover, while plaintiff received a counseling over the gas mask incident, it was rescinded after he contacted the in-house Employee Concerns Program. The counseling also did not place Tepperwien in an "active disciplinary process" and it was less than a warning or reprimand. Rather, the Second Circuit says that counselings like this are "part of training and necessary to allow employees to develop, improve and avoid discipline." And, like plaintiff, other employees were also counseled for not checking certain equipment. In all, the Second Circuit says that all the negative treatment was not sufficiently adverse (including the evil stare from a supervisor and another supervisor's empty threat to walk plaintiff off the worksite after plaintiff facetiously threatened to kick the harasser in the groin) to support a Title VII retaliation claim.

In the aggregate, these various responses by management in the wake of plaintiff's sexual harassment complaint also would not deter anyone from complaining in the future. As Judge Chin writes, "zero plus zero is zero." Moreover, noting that context is crucial in assessing whether the plaintiff suffered an adverse action, the Court says that the high-security environment at Indian Point requires that management exhibit little tolerance for mistakes and rules violations, and "it is not surprising that Tepperwien was treated in a rough and tumble manner rather than with kid gloves or in a genteel fashion."

In dissent, district judge John Gleeson would reinstate the verdict. This lengthy dissent proves that there are truly two sides of every story. Among other things, plaintiff did not have factfinders until he complained about the harassment. Judge Gleeson fleshes out some of the evidence that the majority opinion omits, including the hassle and runaround that Tepperwien experienced after lodging his complaints. While plaintiff said in his exit survey that he liked his job, Judge Gleeson says that the jury could credit his testimony that he did not want to look like a disgruntled employee and that you can like your job and be reasonably dissuaded from complaining about discrimination at the same time. Judge Gleeson also objects to the majority's view that a high-security workplace might require security officers to put up with diluted antiretaliation rights under Title VII.

Officers violate Fourth Amendment in gun seizure

Can the police just march into your house without a warrant? Sometimes they can. That does not mean they have the right to seize the gun in the bedroom, though.

The case is U.S. v. Simmons, decided on October 26. This case implicates the Fourth Amendment, which protects the sanctity of the home. Robert Simmons's roommate, Jamar Vaz, told the police that Simmons flashed a handgun during a dispute. The police accompanied Vaz into the apartment so that Vaz could retrieve his stuff. Once they got inside the apartment, the police conducted a protective sweep, making sure no one would jump out of nowhere with a gun. They saw Simmons lying in bed with a gun on the nightstand. They got Simmons out of bed and made him wait in the hallway. The police were now safe. They went into the bedroom and got the gun, and since he already had a felony record, Simmons was thus charged with unlawful possession.

The Court of Appeals (Parker and Pooler [Winter dissents]) says the gun seizure violated the Fourth Amendment. While the "public safety" exception to the Fourth Amendment allowed the police to ask Simmons about the gun without reading him any Miranda rights, the police had no right to then enter the bedroom to retrieve the gun. By this point, Simmons is standing in the hallway in his underwear, surrounded by police officers. The public safety threat is gone. If the police want to retrieve the gun, they can get a warrant. They did not do so, which means the gun is suppressed as evidence. Here's what Judge Parker writes:

Thus, before conducting the search, the officers had effectively allayed the safety concerns that justified their initial questioning of Simmons and had, by exercising control over a compliant occupant and the surrounding premises, neutralized any threat that Simmons or the gun may have initially posed. In doing so, the officers also eliminated the possibility of the destruction of evidence. Under these circumstances, there simply was no "urgent need" to further search the home for the gun without a warrant.

Anti-war protesters lose case against West Point

Military installations like West Point are no-speech zones, even though West Point is also a college and cultural center. But even no-speech zones cannot allow for viewpoint discrimination. A case went to trial three years ago alleging that anti-war protesters were kicked out a West Point basketball game because of their T-shirts. The jury rejected that claim, and the Court of Appeals affirms.

The case is Dolman v. Horner, a summary order decided on October 18. The Second Circuit (Raggi, Pooler and McLaughlin) summarizes the case:

On February 28, 2004, the Plaintiffs attended a basketball game - open to the public - at West Point. When the national anthem played, they stood up, removing their jackets and revealing t-shirts spelling out “US OUT OF IRAQ.” Shortly after, John Spisso, the facilities manager, told Plaintiffs they could either remove their t-shirts or leave the arena. The Plaintiffs agreed to leave the arena. Garrison Commander Ann Horner sent each of the Plaintiffs a letter barring them from “all areas of West Point” for a period of five years, based on the incident.

You have to remember that this incident took place at the height of the Iraq war controversy. Showing up to a West Point event with anti-war T-shirts was no way to make friends. But if they were thrown out of the game because they were anti-war, then they win the case, because even military installations cannot discriminate based on viewpoint. The jury found for defendants. The Court of Appeals affirms, reasoning that the jury could find that the decisionmakers were not motivated to discriminate against the protesters but instead thought they were enforcing a legal no-demonstration policy:

The district court properly determined that the Plaintiffs failed to satisfy the high standards required to overturn a jury verdict. While the record does contain evidence in support of the Plaintiffs’ case, the record also contains ample evidence from which a reasonable jury could find in favor of defendants. Specifically, a reasonable jury could find that regardless of whether a specific written policy existed prohibiting organized demonstrations at West Point, both Spisso and Horner believed demonstrations were not permitted at West Point, and that belief - not viewpoint discrimination - motivated the removal of Plaintiffs and the subsequent barment order. Moreover, a reasonable jury could conclude that defendants considered the t-shirts as the vehicle for the demonstration, and barred Plaintiffs based on their group effort in conveying the message, rather than for the message itself.

Sanctioned!

There is a time and a place for everything. For the 9/11 conspiracy theorist, it's the street corner or the Internet, not the Federal courts. There are no sanctions on the street corner. There are sanctions in the Federal courts.

The case is Gallop v. Cheney, decided on October 14. This case alleges that the U.S. government orchestrated the 9/11 attacks. As if the government actually had the coordination to pull something like this off. Anyway, the district court dismissed the case. The Court of Appeals affirmed, but then it threw in a sanctions order for good measure. Plaintiffs' counsel had to show cause why sanctions were not warranted. Then things got interesting.

Plaintiff immediately moved to disqualify the panel that decided the appeal. Counsel said that the judges on the case were too emotionally-affected by the 9/11 attacks to decide the case fairly. What is more, "[t]he affidavit was also peppered with disdainful and unsubstantiated conclusions about the panel members’ emotional stability and competence to serve objectively. See, e.g., Veale Aff. ¶¶ 3, 19 (alleging that the Court had engaged in a “rank, dishonest wielding of ordained power,” and that the participation of one member in particular was so egregious that it “would or should provoke a congressional investigation”)."

That did it. Counsel got sanctioned again, this time for attacking the judges this way. Not only does "the response presents only irrelevant information in a jarringly disorganized manner, united solely by its consistently patronizing tone," but it does not "provide a sufficient basis for pursuing an appeal of Gallop’s claims against defendants." In addition, the response "contains a robust collection of unsupported accusations of bias against the Court. For example, it accuses the Court of 'an untoward, actionably biased judicial response' to Gallop’s claims, 'angry pre-judgment,' and participation (or at least acquiescence) in the 'ongoing' government 'conspiracy' regarding the events of 9/11." The lawyers are hit with paying double the governments' costs in handling the appeal plus $15,000 in fines, to be paid jointly and severally.

Party Witness Rule does not violate First Amendment

Election Law in New York is notorious for its crazy rules and requirements to get on the ballot. You sometimes hear about political careers that were destroyed because the nominating petitions used the wrong staple. Is that an urban legend? Maybe. But everybody knows you need an Election Law expert to get on the ballot, which is why some of these rules are unconstitutional. But some are legal.

The case is Maslow v. Board of Elections, decided on September 30. It took the Court of Appeals two years to issue this 11-page decision. Political candidates, among other candidates, asked the Court to decide whether the Party Witness Rule violates the Constitution. Under that rule, the guy who circulates petitions to get you on the party primary ballot has to be a notary public or commissioner of deeds. If you can't find a notary or commissioner of deeds, you can use instead "enrolled voter[s] of the same political party as the voters qualified to sign the petition.” The plaintiffs want to use petition witnesses from different political party. They lose the case.

This is a First Amendment case. The plaintiffs say the Party Witness rule violates their freedom of associational right to have non party members assist in party elections. But the Court of Appeals (Hall, Straub and Livingston) say this rule only minimally interferes with freedom of association.

The Court of Appeals notes that "A political party’s associational right to exclude forecloses the possibility that non-party members have an independent First Amendment right to participate in party affairs." Moreover, “As for the associational ‘interest’ in selecting the candidate of a group to which one does not belong, that falls far short of a constitutional right, if indeed it can even fairly be characterized as an interest.” The parties have the right to limit these activities to members of their own party. The Republicans don't need Democrats to gather signatures for Republican candidates, and vice-versa. The rights of the party exceed the rights of the candidates.

What further hurts the plaintiffs here is that there is some logic to the Party Witness rule. The rule was enacted in 1951. Under the Legislative history, New York enacted the Party Witness Rule "apparently in response to incidents of 'party raiding,' whereby members of one party would actively participate in the primary of a rival party in the hope of influencing that party’s candidate nomination and thus improving their own chances in the general election."

Sham affidavits doom plaintiff's sexual harassment case

Not all factual disputes get you a trial. Sometimes, the plaintiff's many testimonial inconsistencies will convince the court that the plaintiff does not a deserve a trial. The Second Circuit first developed this approach to summary judgment in Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), a police misconduct case. This time around, the Court of Appeals does this in an employment discrimination case.

The case is Rojas v. The Roman Catholic Diocese of Rochester, decided on October 4. This is a sexual harassment case. Plaintiff says she was harassed by Pastor Enyan-Boadu and that she told management about it, which did not remedy the hostile work environment. Except that her testimony on both whether Enyan-Boadu was her supervisor and whether she told management about the harassment was all over the place.

While plaintiff's summary judgment affidavit and deposition testimony said that the harasser, Enyan-Boadu, was her supervisor and that management knew or should have known about the harassment, the lawsuit itself and her sworn interrogatories said that Enyan-Boadu was only a co-worker. (If he was the harassser, she has a stronger case). Similarly, the EEOC charge and lawsuit (as well as the interrogatories) did not quite allege that she told management about the harassment, but "Rojas's story changed when she was deposed by the Diocese's attorney" when "for the first time, she stated that she complained to [another manager] during her annual performance evaluation ... that Enyan-Boadu was 'touching her.'" Also during deposition, she testified that she told this manager on a different occasion that Enyan-Boadu was "touching me and kissing me." On the other hand, the Second Circuit says, the Diocese sought summary judgment on the basis of affidavits and contemporaneous emails and meeting notes that "strongly suggest[ed] that it had no knowledge of the alleged harassment until after Rojas's employment ended."

So, we have a problem here. Rojas tries to repel summary judgment through an affidavit and deposition testimony that would support her claim. But other documents in the case, including the complaint itself, does not support this sworn testimony. The case is dismissed. Although witness credibility is for the jury, the Court of Appeals has previously held:

in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether ‘the jury could reasonably find for the plaintiff,’ ... and thus whether there are any ‘genuine’ issues of material fact, without making some assessment of the plaintiff’s account.

Does this rule make sense? It might. The courts might be doing plaintiffs' attorneys a favor in adopting this rule. With these kinds of inconsistencies, the plaintiff would get destroyed on cross-examination if the case ever went to trial. The Supreme Court has not adopted this approach to summary judgment, but it probably would if given the opportunity. Courts are sensitive to back-door efforts to force a trial through inconsistent summary judgment affidavits.

The serious inconsistencies between plaintiff's summary judgment submissions and her prior sworn statements and judicial admissions allow the Court of Appeals (Cabranes, Hall and Miner) to affirm the grant of summary judgment. The Court reminds us that district courts should not "routinely engage in searching, skeptical analyses of parties 'testimony' in opposition to summary judgment," particularly if there is a plausible reason for the inconsistencies. But in certain extraordinary cases, the trial court may dismiss the case if it thinks the summary judgment affidavits are sham. Otherwise, those affidavits "would license the mendacious to seek windfalls in the litigation lottery." As plaintiff in this case did not explain the discrepancies, summary judgment was proper.

Inmate gets a second chance at late grievance

Congress has made it so hard for inmates to bring lawsuits that it's a wonder that they even win their cases anymore. But some do, and occasionally the federal courts find ways to minimize the rigid filing requirements that inmates must navigate.

The case is Hill v. Curcione, decided on September 15. This case shows the difficulties of winning an inmate case on the merits, but it also shows that he Court of Appeals will bend the rules a little for the inmates. Hill was at the Niagara County Jail. He suffered an injury when some guards put the handcuffs on too tight, causing some numbness and much pain. He was given Motrin, which didn't kill the pain, and Hill asked for a nerve conduction study. Under the jail's rules, he filed a grievance over the handcuffs. He sues over the excessive force and also challenges the medical treatment.

The medical treatment claim dies instantly. Inmates have to show deliberate indifference to their serious medical needs. This is a difficult standard to meet. Hill cannot satisfy it. The lawsuit says he was denied the right pain medication and the nerve study, but "there is no indication in the complaint that any medical provider recommended treatment different from the treatment that Hill was afforded," the Court of Appeals (Miner, Cabranes and Straub) says. Nor does Hill allege that the jail staff acted with the "culpable state of mind," i.e., deliberate indifference. As the courts see it, cases like this are actually challenging good-faith medical judgment in the jails, not deliberate indifference. The case fails.

But Hill does prevail on another issue. In order to bring a lawsuit for assault or anything else that happens in the jail, the Prison Litigation Reform Act (PLRA) requires inmates to bring an in-house grievance within a certain time frame: in this case, five days from the incident and, if the grievance is denied, you have two days to appeal to the jail's chief administrative officer. This of course is all academic, since inmates rarely win their grievances. But grieve they must. While Hill's grievance was untimely, the jail's grievance guy entertained it and denied it on the merits, not because it was untimely. The Second Circuit adopts the rule that other Circuit courts have followed: "a late filing that is accepted and decided on the merits fulfills the exhaustion requirement of the PLRA." This rule allows for the reality that some institutions waive their procedural defenses. Hill's assault claim in federal court is reinstated. A nice ruling by the Second Circuit, but you can bet that in the future, jails will not entertain untimely inmate grievances on the merits; they will reject them as untimely.

Technicality kills habeas challenge to criminal court exclusion

The Court of Appeals has repelled a Habeas Corpus claim alleging that a state trial court judge improperly kicked a 12 year-old family member from the courtroom in violation of the Sixth Amendment. The convicted inmate loses on the ultimate technicality: the Court of Appeals find that his lawyer did not preserve his objection to the courtroom exclusion at trial.

The case is Downs v. Lape, decided on September 14. Is there anything worse than losing on a technicality? Making things worse for Downs, Judge Chin dissents from the Second Circuit ruling. This means that Downs had some legitimate arguments, but he could not win over the other two judges, Wesley and Lohier. When Hill went to trial on the charge that he robbed a body shop, the trial court excluded his 12 year-old brother from the courtroom. This is unconstitutional and entitles the defendant to a new trial unless there is a very good reason not to have a public trial. The problem is that a sparse record was made of this determination, giving the Second Circuit very little to work with in assessing whether the state trial judge did the right thing.

After the trial judge kicked out the 12 year-old boy, Downs' lawyer went on the record and said this:

I do want to note for the record that there was a young man who, a family member of the defendant who had been asked by the Court to leave because of his age. He is 12 years old and the Court is indicating that it sets a limit of approximately 16 or 17 years of age.

I informed the family of that and I’m sure they will comply. However, I do want to note, for the record, that I believe the young man is a suitable age and that he would not have been an obstruction to the proceedings.

But be that as it may, I have also spoken to the assistant district attorney earlier to apprise her of the following list of things that I believe that I am entitled to and have not yet received . . . .

The Second Circuit has its hands tied behind its back on this appeal because for Downs to win on his claim that the trial court violated the Constitution, he has to show that the Appellate Division "exorbitantly" applied settled state law rules in rejecting Downs' direct appeal. Judge Lohier says that Downs cannot meet that test. While Downs' lawyer offered a few words on the record after the trial court made its exclusion ruling, it is not clear that this was actually a particularized objection or whether instead counsel was simply telling the court that the family intended to comply with the ruling. These distinctions matter in these cases, and the Court of Appeals defers to the Appellate Division's ruling that counsel did not preserve the objection at trial.

This is a close case, though, as shown by Judge Chin's dissent, which says that counsel did make a proper objection in making his comments "for the record," which is lawyer-speak for saying something that he wants the appellate court to see on some future date in assessing the fairness of the trial. Judge Chin was a former trial judge. He writes, "as a trial judge, I certainly understood that a lawyer was objecting when she stood up and said 'for the record' before expressing disagreement with my ruling. To Judge Chin, it looks like counsel was objecting to the trial court's blanket rule of excluding all young people from criminal trials, a per se constitutional violation since particularized reasons must justify these exclusions. As this objection was timely, counsel did not waive his protest, and this case should be decided on the merits.