The Second Circuit giveth and taketh away

In 2009, the Second Circuit held that a criminal suspect's custodial admissions had to be suppressed because he properly invoked his right to remain silent and could not be questioned about his alleged child pornography without an attorney present. The Court of Appeals in 2011 reverses itself in that same case because the Supreme Court changed the ground rules governing the right to remain silent and the right to counsel. Them's the breaks in a world of closely-divided Supreme Court rulings.

The case is United States v. Plugh, decided on August 8. When the police took Plugh into custody, he refused to sign the waiver form that says he would waive the Miranda rights to remain silent and insist on a lawyer. But he told the police, "I am not sure if I should be talking to you" and "I don't know if I need a lawyer." En route to the FBI office, he asked the agents "for advice on what to do." In 2009, the Second Circuit said that these facts compelled the trial court to grant Plugh's suppression motion, which would prevent the jury from hearing Plugh's incriminating statements. The Court of Appeals reasoned that while Plugh's statements were ambiguous about whether to waive his rights under Miranda, his refusal to sign the waiver form was unequivocal. The police should not have continued questioning him after he made it clear that he did not want to talk. This was good news for Plugh!

Then Plugh got some bad news. In 2010, the Supreme Court took up a nearly identical case, ruling in Berghuis v. Thomkins, 130 S.Ct. 2250 (2010), that criminal suspects must make an unequivocal statement to the effect that they do not want to talk and wish to invoke their rights under Miranda. This interpretation of Miranda was intended to allow for clear-cut rules to guide police behavior.

What this means for Plugh is that the Court of Appeals now reverses itself in this case, vacating its 2009 decision. First, "Plugh did not expressly state that wanted to remain silent or that he wanted to consult with an attorney." Moreover, his only statements on issue were ambiguous. He did not insist on the right to an attorney. He instead said he was not sure he needed a lawyer. While Plugh said that he unequivocally refused to sign the Miranda waiver form, that is not enough to suppress his incriminating statements made afterward. The Court of Appeals (Livingston, Jacobs and Rakoff [D.J.]) says that "a refusal to waive rights, however unequivocal, is not necessarily equivalent to an unambiguous decision to invoke them. Indeed, the Supreme Court has made clear that 'invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together." In a hair-splitting analysis that I am sure Plugh will be reading over and over in the wake of this decision, the Court of Appeals writes:

While his refusal to sign the form presented to him upon arrest may have unequivocally established that he did not wish to waive his rights at that time, his concurrent statements made equally clear he was also not seeking to invoke his rights and thus cut off all further questioning at this point. Those statements ... bespoke indecision -- i.e., 'I am not sure if I should be talking to you' -- and contemplation, i.e., 'I don't know if I need a lawyer.' Plugh then continued to express uncertainty about how he wished to proceed by repeatedly asking the agents, during the drive to the FBI field office, for advice on what to do. Critically, at no point did Plugh unambiguously inform the custodial officers that he wished to invoke his right to remain silent or his right to speak with an attorney, nor was his course of conduct such that the officers should reasonably have been put on notice that ... no further questioning should occur.

The right to be vulgar

A case arising from Nassau County reminds us that the First Amendment prohibits the government from arresting people who use mindless vulgarities, so long as the foul language does not rise to the level of "fighting words" or create imminent danger of violence.

The case is People v. Louis, decided by the District Court of Nassau County on July 25. The defendant called the district attorney's office and directed his obscene tirade toward a lawyer there. The accusatory instrument prepared by the assistant district attorney states:

On or about and between February 22, 2010 and April 11, 2010, while employed at the Nassau County District Attorney's Office ... as an Assistant District Attorney, I received a series of telephone voice mail recordings from defendant, Nicolas Pierre–Louis․ In the voice mails, Nicolas Pierre–Louis yells, screams and uses profanity, stating in part, “I'm coming at you with fury,” and, “piece of shit faggot fucking cock sucking cock,” and “bitch, you will lose your fucking job,” and “I got all the juice enough to make sure that you're holding a can in the fucking street,” and “and I will keep calling until you arrest Jessy Pierre–Louis, so do your fucking job” and “when you lose your job bitch, don't say I didn't warn you,” and “I will rain hell on your office and make sure heads roll,” you racist bitch” and “you assholes” and “you motherfuckers.” Nicolas Pierre–Louis says many other profane and offensive comments left recorded on my office voice mail that are alarming and annoying. The repeated calls left by Nicolas Pierre–Louis caused me to fear for my safety and the safety of [another] Assistant District Attorney ... because of the screaming outbursts of rage and anger directed toward [the other ADA] ... and I [sic] and the content of what he was saying during his many calls.

This is pretty obscene, and you can understand why the Assistant District Attorney got worried. Probably more government employees than you think live in fear that someone from the public will follow through on threats like this. The question here is whether this phone message violates the Aggravated Harassment law in New York, which prohibits any telephonic or other electronic communication that is "likely to cause annoyance or alarm." This is tricky language. The Supreme Court has held that, under the First Amendment, vulgar or offensive speech cannot be restricted unless it presents "a clear and present danger" of imminent harm. The New York Court of Appeals has similarly held that

Speech is often “abusive”—even vulgar, derisive, and provocative—and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that. Casual conversation may well be “abusive” and intended to “annoy”; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.

More broadly, citing Supreme Court authority, the Nassau County court says, "A criminal prohibition on communicating in an alloying or alarming way is facially unconstitutional." Under these legal standards, Louis's telephone message is free speech, not aggravated harassment. They are not "fighting words" or a "true threat" of violence. The Court says, "In spite of the fact that the defendant uses a number of derisive terms in reference to the ADA, his statements seem confined to threats to have the ADA fired. Even the worst of the alleged statements, 'I'm coming at you with fury,' is too vague to be considered a true threat, but is more properly understood in context with the defendant's other statements." As applied to this case, the Aggravated Harassment law is unconstitutional.

Let the New York Court of Appeals worry about it

A res judicata curveball finds its way to the Court of Appeals in this employment discrimination case, where the pro se plaintiff brought suit in federal court after a state court dismissed as untimely her appeal from an adverse State Division of Human Rights finding. The Court of Appeals decides that this is a job for the state Court of Appeals, and the case is now at the doorstep of the state's highest court.

The case is Joseph v. HDMJ Restaurant, decided on August 5. Joseph says her colleagues subjected her to some horrible sexual harassment. She went to the State Division of Human Rights, which rejected her claim following a hearing. She then appealed to State Supreme Court, which rejected her claim because she filed the Article 78 appeal too late. She next filed a lawsuit in federal court.

If you are not well-versed in Title VII law, your instinct will say that the federal claim should be dismissed because Joseph lost her claim in State Supreme Court on statute of limitations grounds. But it's not so easy. In University of Tennessee v. Elliott, 478 U.S. 788 (1986), the Supreme Court said that plaintiffs may proceed in federal court on employment discrimination cases so long as they did not appeal the adverse administrative findings in state court. But Joseph did take up that adverse administrative appeal in State Supreme Court, and lost on timeliness grounds.

Two Second Circuit rulings address this problem. In Bray v. New York Life Insurance, 851 F.2d 60 (2d Cir. 1988), the Court said that res judicata attaches when the federal court Title VII plaintiff previously lost her untimely appeal in state court from an adverse administrative determination. Bray is identical to the Joseph case. But in Cloverleaf Realty v. Town of Wawayanda, 572 F.3d 93 (2d Cir. 2009), a municipal due process case that had nothing to do with employment discrimination, the Court of Appeals said that the plaintiff could bring a federal civil rights action after losing on timeliness grounds an Article 78 in state court. The Cloverleaf court said that Bray was no longer good law because the New York Court of Appeals held in Tanges v. Heidelberg North America, 710 N.E.2d 250 (1999), that "the expiration of the time period enumerated in a statute of limitations would not bar an otherwise available federal remedy."

So which is it? Joseph can win the appeal under Cloverleaf, but she loses under Bray. Cloverleaf is the more recent decision, and it is therefore more useful. But Bray is closer to Joseph in its facts. The mid-level appeals courts in New York have not provided enough guidance on this problem, either. The Second Circuit (Katzmann, Hall and Jones [D.J.]) judges looked at each other and said, "what are we going to do?" Here is what they do. Since res judicata is a creature of state law, the Court of Appeals certifies the case to the New York Court of Appeals, which has authority to resolve state-law puzzles like this. So for now, the case sits in limbo until the state's highest court picks up the pieces.

Court reinstates racial discrimination lawsuit

The Second Circuit has reinstated a lawsuit alleging that the plaintiff was discriminated against because she is white. This case reminds us that it does not take much to survive a motion to dismiss employment discrimination cases.

The case is Schwab v. Smalls, a summary order decided on July 27. The district court threw out the case after over-analyzing it under the McDonnell-Douglas standard. But the McDonnell-Douglas test is an evidentiary standard, not a pleading requirement. The Supreme Court said that in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), which relaxed pleading standards in employment cases. The Court of Appeals (Jacobs, Calabresi and Sack) notes that "questions have been raised" as to whether more recent Supreme Court pleading cases, like Ashcroft v. Iqbal, 129 S.Ct. 1939 (2009), which impose a plausibility test in reviewing complaints, have undercut Swierkiewicz's vitality.

The Court of Appeals sidesteps this scintillating debate. It says that whatever the legal standards are, Schwab has plead a legitimate employment discrimination claim. Here's why:

The plaintiff's complaint alleges that (1) she is white and Smalls and Chakar are African-American and "Arab-Lebanese," respectively; (2) she held her position without incident for many years; and (3) her employment was terminated after Smalls refused to recommend her reappointment; and (4) the circumstances of her termination are suggestive of discrimination.

With regard to the fourth point -- the final element of a prima facie case of discrimination under McDonnell Douglas and the only element that the defendants contest for the purposes of this appeal -- the complaint provides the approximate date and substance of the defendants' meeting at which they agreed to their "plan"; alleges that their aim was to force Schwab out of her position so that they could appoint a less qualified African-American woman in her place; and details the allegedly pretextual requests for data that Schwab had never been asked or required to maintain. We think this satisfies Schwab's burden at this early stage of the litigation under either of the two arguably applicable pleading standards.

No preliminary jury trials in federal court

Inmates have to jump through hoops if they want to bring a federal lawsuit over their ill-treatment in jail. They have to file a grievance with jail authorities. Of course, if the jail authorities deny they even received the grievance, then the inmate has a problem.

The case is Messa v. Goord, decided on July 26, 2011. What often happens in these cases is that the jail authorities say they never got the grievance, and the inmate says otherwise. Without a grievance, there's no lawsuit. In this case, the inmate says he did not file the grievance because the guards threatened him if he did file one. Prison staff also refused him assistance on this, though they deny the allegation. Who resolves this dispute? Judge or jury? The Court of Appeals says the judge does.

Messa says the Seventh Amendment entitles him to a jury trial to resolve the administrative exhaustion requirement. Not so fast, the Court of Appeals (Parker, Chin and Korman [D.J.]), says. The Seventh Amendment does provide for jury trials in certain instances. But, "[m]atters of judicial administration often require district judges to decide factual disputes that are not bound up with the merits of the underlying dispute. In such case, the Seventh Amendment is not violated." While ultimate factual determinations are for the jury, "here, the factual disputes relating to exhaustion are not intertwined with the merits of Messa's underlying excessive force claim."

That's not the only reason why the Second Circuit rules against plaintiff. In passing the grievance requirement in the Prison Litigation Reform Act, Congress wanted to let prisons decide on these matters before they reach the courts, and to reduce the quantity and improve the quality of inmate lawsuits. "To require a jury trial before it is certain that an inmate is entitled to to be in federal court would seriously undercut these goals," the Second Circuit reasons. In other words, Congress was sick and tired of inmate lawsuits. To empanel a jury to see if the inmate is allowed to even walk in the door with his case would undercut Congressional intent.

2d Circuit vacates $204 attorneys' fees award

It's awfully tough to challenge attorneys' fees awards in the Court of Appeals, which applies a deferential "abuse of discretion" standard in reviewing the district court's order. But in this FMLA retaliation case where the trial court awarded only $204 in attorneys' fees, the plaintiff overcomes that hurdle, producing a Second Circuit ruling that serves as a good primer on how to assess fees in cases where the plaintiff recovers a small damages award.

The case is Millea v. Metro-North Railroad, decided on August 8. You read it right. The plaintiff won his FMLA claim and counsel only got $204 in attorneys' fees (his lawyer petitioned the court for over $144,000 in fees). The district court ruled this way because plaintiff only recovered $612.50 in damages after proving that management interfered with his FMLA rights in requiring him to comply with an in-house leave notification rule that conflicted with the FMLA. On that claim, his rights were violated, but his damages were low.

Prior to 2008, the Second Circuit (like the other circuits) said that in calculating an attorneys' fees award, you multiply the attorneys' hours expended on the case by the hourly rate. After performing this calculation, you can adjust the award accordingly, usually downward if the plaintiff did not succeed on all his claims. This is the lodestar model. In Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008), the Second Circuit rejected the lodestar model for something more complicated: the "presumptively reasonable fee" as calculated through 12 separate factors. But in Perdue v. Kenny A., 130 S.Ct. 1662 (2010), the Supreme Court seemed to endorse the lodestar test anew, undercutting the Arbor Hill analysis.

Under the lodestar model, the district court abused its discretion in sharply reducing the attorneys' fees because it thought that Millea's case was not complicated and did not involve any novel issues. This is no basis, in itself, to reduce the fees. If the case is that simple, then counsel will have spent fewer hours on the case, which will reduce the lodestar amount. But a relatively simple case is no basis to reduce the overall attorneys' fees entitlement across-the-board. Millea's attorneys will get a lot more money under the Second Circuit's reasoning in this case.

The district court also blew it when it held that the low attorneys' fees award was appropriate because the case had no public policy significance. This was wrong. This case was not lucrative, but it was important. The Court of Appeals (Jacobs, Hall and Scheindlin [D.J.]), says that "Congress has already made the policy determination that FMLA claims serve an important public purpose disproportionate to their cash value. We cannot second-guess this legislative policy decision." This is a significant holding. In the past, the Second Circuit drastically reduced attorneys' fees awards in civil rights cases when the plaintiff won a nominal or modest damages award. The Court of Appeals applied this rule in Carroll v. Blinken, 105 F.3d 79 (2d Cir. 1997), one of the leading cases in this area. The Second Circuit now says that Purdue v. Kenny A. undercuts Carroll in stating that the lodestar is the "guiding light of our fee-shifting jurisprudence" that should be deviated from only in "rare" and "exceptional circumstances."

Relatedly, the district court justified the low attorneys' fees award because this was a "de minimus" victory. But the Court of Appeals says the $612.50 damages award actually was not de minimus; it represents more than 100 percent of the damages that Millea sought on his FMLA interference claim. This was no derisive jury award. The jury gave Millea what he asked for. As the Second Circuit says, "FMLA claims are often small-ticket items, and small damages awards should be expected without raising the inference that the victory was technical or de minimus. If an expense of time is required to obtain an award that is not available by voluntary compliance or offer of settlement, the expense advances the purposes of the statute." The Court adds, "especially for claims where the financial recovery is likely to be small, calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery."

FMLA plaintiff gets new trial on retaliation claim

The Court of Appeals holds that Metro-North violated the Family and Medical Leave Act in requiring an employee to comply with an in-house leave procedure that is inconsistent with the FMLA. The Court further says that, on the FMLA retaliation claim, the trial court must charge the jury consistent the Burlington Northern standard, which asks if the employer's reaction to the plaintiff's protected activity would dissuade a reasonable employee from asserting his rights again.

The case is Millea v. Metro-North Railroad, decided on August 8. Millea suffered from post-traumatic stress disorder and, due to a confrontation with his supervisor, had a panic attack at work that forced him to miss work. He wanted to take FMLA leave. Metro-North policy said that you have to notify your immediate supervisor for this. Technically, Millea did not comply with the policy. Instead, he told another supervisor about the FMLA leave who, in turn, notified Millea's immediate supervisor. Metro-North actually disciplined Millea for violating company rules. The jury ruled in Millea's favor, awarding him $612.50 in damages. Metro-North challenges the verdict.

The challenge fails. As the company policy that Millea technically violated is inconsistent with the FMLA, which allows for indirect notification to a supervisor in emergency circumstances, he could not be disciplined for violating company policy, and the jury properly ruled in Millea's favor on the FMLA interference claim.

Millea himself takes up an appeal in this case, arguing that the trial court did not properly charge the jury on the elements of his FMLA retaliation claim. If you handle retaliation claims, you are familiar with the test in Burlington Northern v. White, 547 U.S. 53 (2006), which says an adverse employment action occurs when management's response to the protected activity (such as asserting your rights under the employment discrimination laws) would dissuade a reasonable employee from asserting his rights in the future. That is not the charge that the trial court read to the jury. The trial court used a different "adverse employment action test," which asks whether the plaintiff suffered a "material adverse change in the terms and conditions of employment," such as demotion, pay cut, demotion or significantly diminished responsibilities. Courts don't use the latter test in retaliation cases; it applies in trying to make out a prima face case for disparate treatment. For this reason, since retaliation plaintiffs don't have to prove a materially adverse change in the terms and conditions of employment, retaliation cases are easier to prove than general disparate treatment cases.

The Burlington Northern case was a Title VII retaliation case. The Court of Appeals says there's no reason why Burlington Northern cannot apply in FMLA retaliation cases, also. Other Circuits have already ruled this way, and the Second Circuit follows suit. Millea suffered retaliation when management placed a formal reprimand in his personnel file. While "petty slights" are not enough to make out a retaliation claim, this is not a trivial sanction, the Second Circuit says. It would in fact dissuade workers from asserting their rights in the future because

it can reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy. A reasonable jury could conclude as much even when, as here, the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently.

Since the jury may find that the formal warning in Millea's personnel file is an adverse employment action, he gets a new trial on this claim under the proper jury instruction. The Court of Appeals also ruled in Millea's favor on his attorneys' fees appeal. That is a blog posting for another day, folks.

NYC police sergeants are entitled to overtime pay

Under the Fair Labor Standards Act, you are entitled to overtime pay if you work more than 40 hours per week. This rule has its exceptions. A "bona-fide executive" is exempt from the overtime entitlement. Do police sergeants fall within this exemption?

The case is Mullins v. City of New York, decided on August 5. The case went to trial, and the City won the case. The district court rejected plaintiffs' motion against the verdict because it said the police sergeants essentially held managerial positions and therefore were not entitled to overtime. As the plaintiffs represent 4,000 officers, there is a lot of money to go around in this case.

The limited group of plaintiffs (known as test plaintiffs) in this case include Housing Patrol Unit Sergeants, Bike Unit Sergeants and Anti-Crime Unit Sergeants and Street Narcotic Enforcement Unit Sergeants. As the Court of Appeals says, "These categories of sergeants perform general law enforcement activities as well as specialized law enforcement activities undertaken only by sergeants as opposed to lower-ranked police officers; sergeants are the second-lowest ranked officers in the NYPD. For example, sergeants are responsible for responding to incidents involving felonies, firearm discharges, and emotionally disturbed individuals." In addition, "While their specific duties vary according to unit, sergeants are generally involved in activities that include pursuing, restraining, and apprehending suspects."

The district court said that the sergeants' primary handle managerial duties. The U.S. Department of Labor weighs in on this issue, arguing that the plaintiffs are not exempt from the overtime rules because their primary duty is not management or supervision, but rather “front line law enforcement.” The Court of Appeals (Newman, Calabresi and Katzmann) defers to the Secretary of Labor's interpretation of the FLSA. The Secretary argues that “[T]he fact that the sergeants direct police officers while they perform field law enforcement activities does not transform the field law enforcement into management.” The Secretary adds, "giving direction and exercising discretion while performing field law enforcement work do not transform [sergeants’] non-management primary duty in a management primary duty.” In entering judgment for the plaintiffs and directing that they receive overtime pay for a three-year period ending in 2004, the Second Circuit concludes:

In light of the Secretary’s controlling interpretation of the first responder regulation, the fact that plaintiffs spend the majority of their time performing non-exempt work in the field, leads to the conclusion that the sergeants’ primary duty is not management but field law enforcement.

The 2d Circuit gives one to the inmates

Allen Harper wanted to file a habeas corpus petition to challenge the constitutionality of his criminal conviction. He had a year to file the petition. He could not do so because he went to the hospital with a serious medical medical condition. The district court dismissed the petition as untimely.

The case is Harper v. Ercole, decided on July 26. The Court of Appeals reinstates the petition on the basis of equitable tolling, an escape hatch that allows the court to extend the statute of limitations in an act of mercy. You need a scorecard to follow the court's reasoning in these cases, so here goes:

Harper's state court conviction became final on May 14, 2007. He had until May 14, 2008 to file the petition. But 78 days before the deadline, he went to the hospital for 65 days, from February 27, 2008 through June 3, 2008. The petition was filed on August 7, 2008, after the deadline. While hospitalization will get you some equitable tolling, and the district court thus decided that Harper got an extra 65 days to file his case, it threw out the petition because Harper did not diligently pursue his rights in the 65 days after he got out out of the hospital.

Giving one to the inmates, the Court of Appeals (Raggi, McLaughlin and Calabresi) reverses, clarifying when the calendar stops and re-starts in equitable tolling cases where the inmate otherwise pursued his rights diligently and did not dilly-dally in the face of a ticking clock:

we conclude that, in this case, where the existence of extraordinary circumstances causing Harper to miss the AEDPA filing deadline is undisputed for the period from February 27, 2008, when Harper was hospitalized, to June 3, 2008, when he was discharged, and where there is no question as to Harper’s diligence in pursuing his claim throughout that period, equity tolled the one-year limitations period to stop on the first date and to resume on the latter date. The timeliness of Harper’s § 2254 filing thus depended on it being within one year of the total untolled time after his conviction became final. Because seventy-eight days remained on the statute of limitations at the start of the tolling period, Harper’s filing of his § 2254 petition on August 17, 2008, sixty-five days after tolling ended, should have been deemed timely without requiring a further showing of diligence in that untolled period.

You cannot sweep lost wages under the carpet

Christine Bergerson won her sexual harassment trial against a state agency. The jury awarded her $580,000 in damages for pain and suffering. The jury also found that she was wrongfully terminated because of her gender. After the trial court reduced the pain and suffering award to $300,000 in keeping with the cap on such damages under Title VII, it decided she was not entitled to any back pay because the $300,000 award for pain and suffering was enough to make her whole under the statute. The Court of Appeals reverses.

The case is Bergerson v. New York State Office of Mental Health, decided on July 21. For practitioners, this case is a good primer on back and front pay under Title VII. The Court of Appeals has to provide this background in explaining why the trial court got it wrong in limiting the plaintiff's damages. In doing so, the district court said:

[Bergerson’s] substantial damages award satisfied both of the objectives of Title VII. Instead of merely having to comply with an injunctive order prohibiting racial discrimination and hostility in the work environment, [CNYPC] must pay [Bergerson] $300,000 in compensatory damages as a result of its unlawful employment practices. . . . Additionally, the magnitude of the jury’s award ensures that [Bergerson] will be made whole for her injuries, including any lost wages, pain, suffering, or emotional distress.

True, damages awards under Title VII have to make the plaintiff whole. But that does not mean that a large award for pain and suffering will cover any other damages to which the plaintiff might be entitled. All these damages awards serve a different purpose. Damages for pain and suffering are self-explanatory: "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," as Congress wrote into Title VII in 1991. But back pay is a separate area of damages entirely, compensating the plaintiff for "what the employee himself would have earned had he not been discharged." The Second Circuit (Miner, Kearse and Chin) thus reasons, "[b]ecause a backpay award requires a separate inquest, a district court may not deny an award of backpay because it believes that an award of compensatory damages is sufficient."