Wednesday, March 30, 2011

Possible due process violation in taxi driver license cases

Taxi drivers in New York City can lose their taxi licenses (and therefore their livelihood) if they are charged with a felony or certain misdemeanors, even if these offenses took place off-duty. Initially, they are suspended from duty. The only process they get is a hearing. Claiming this procedure violates, the due process clause, the drivers sued the City.

The case is Nnebe v. Daus, decided on March 25. Using a three-page list of offenses, ranging from violent offenses to relatively trivial ones like giving unlawful gratuities and unlawful assembly, the Taxi and Limousine Commission will suspend the driver if his offense appears on that list, and it does not consider the underlying factual allegations or the licensee’s driving record. While the driver gets a quick hearing before an administrative law judge, "ALJs nearly always recommend continuing the suspensions during the pendency of criminal proceedings and that the Chairperson usually accepts the ALJ’s recommendation." (The driver gets his license back if he is cleared in criminal court). There is also evidence that the ALJs lack adequate decisional independence, the Court of Appeals (Hall, McLaughlin and Restaini) says. One ALJ testified that he was worried that his improper recommendations would lead to his duties being modified or his transfer from Manhattan back to the TLC’s Long Island City office, which he called “a very depressing environment.”

The Court of Appeals is not sure this satisfies due process under the very convoluted legal standards that courts have adopted over the years in interpreting the brief and vague language in the due process clause of the U.S. Constitution. Lack of any hearing prior to the suspension will not in most cases violate the due process clause, because you get a hearing and then, post-hearing, a chance to challenge the deprivation in court. While the Second Circuit notes that "the private interest at stake here is enormous" in that the driver cannot work with a suspended license, the risk that the driver will be improperly denied his license "is mitigated by the availability of a prompt post-deprivation hearing." The Court concludes, "Although we understand that even that loss can be deeply problematic for a taxi driver, we conclude that in the immediate aftermath of an arrest, when the TLC has minimal information at its disposal and the very fact of an arrest is cause for concern, the government’s interest in protecting the public is greater than the driver’s interest in an immediate hearing. Accordingly, no pre-suspension hearing is required."

What troubles the Court is whether the hearings are fair enough to protect the rights of the taxi drivers. The case is sent back to the district court for another look at this quandary. The City says that the driver may win the hearing if "the charges, even if true, did not demonstrate that continued licensure would pose a threat to public safety." But there is not enough evidence in the record to know if this actually happens. In reasoning that looks at the real-world impact of the fairness of these hearings, the Court of Appeals says:

A former general counsel for the TLC testified that he has never heard of an instance of an ALJ discontinuing a summary suspension or making a recommendation to that effect. Several attorneys whose practices include representing taxi drivers corroborate this, and one states that he now declines to represent drivers at summary suspension hearings because he feels it is improper to accept money for a proceeding where “the result is not in doubt.” Conversely, the City has never pointed to any evidence showing how a driver could prevail at a suspension hearing after an arrest for one of the offenses listed on the summary suspension chart. We are not convinced, therefore, that the City binds itself to the standard it says is in place.

The Court adds that "The City’s defense of the process it affords is premised on a contention that it provides drivers with a real opportunity to show that they do not pose a risk to public safety, arrests notwithstanding. The record on summary judgment, however, does not support the City’s view of the facts. To the contrary, the record strongly suggests that, whether de facto or de jure, an ALJ is strictly prevented from considering anything other than the identity of the driver and the offense for which he was charged upon arrest." If it's really the case that the driver does not get his license back until the criminal charges are resolved, then the procedures may violate due process. As the district court is going to have to look at this question anew, summary judgment is vacated.

Monday, March 28, 2011

Activists have standing to challenge wiretapping laws

The best case in the world cannot get out of the starting gate if the plaintiffs do not have standing to sue, i.e., if they do not have a concrete interest in the outcome of the case. The question in this case is whether journalists, lawyers and activists have standing to challenge the recent national security surveillance rules. They do.

The case is Amnesty International v. Clapper, decided on March 21. Under the theory that 9/11 changed everything, Congress in 2008 made it easier for the government to wiretap people in the interests of fighting terrorism. No longer does the government have to submit an individualized application to the Foreign Intelligence Surveillance Act (FISA) Court. Under the revised law, the Attorney General and Director of National Intelligence can get a "mass surveillance authorization" to listen in on phone calls. The revised law also does away with any probable cause requirement for these warrants.

In challenging the law, plaintiffs filed affidavits that said "the individuals with whom [they] communicate include 'people the U.S. Government believes or believed to be associated with terrorist organizations,' 'political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,' and 'people located in geographic areas that a special focus of the U.S. government's counterterrorism or diplomatic efforts.'" Their legal injuries stem from their fear of future government surveillance under the 2008 amendments to the wiretapping laws, which have "compromised their ability to locate witnesses, cultivate sources, gather information, communicate confidential information to their clients,and to engage in other legitimate and constitutionally protected communications." They also have to take costly and time-consuming measures to avoid the wiretapping, including traveling long distances to meet personally with individuals.

This is enough to confer standing on these plaintiffs. They do not have a generalized grievance with the 2008 statutory amendments. The Second Circuit (Lynch, Calabresi and Sack) note that the amendments affect how they do their jobs, and the new law has chilled their reporting and legal advocacy, particularly since it is reasonably likely that the government will monitor their communications with people around the world in whom the U.S. government has an interest in the post-9/11 environment. These economic and professional injuries are not speculative, as the district court held. Plaintiffs have concrete injuries as set forth in their affidavits.

Mind you, the Second Circuit is not holding that the 2008 amendments are illegal. The Court is only saying that these plaintiffs are in a position to challenge the constitutionality of the new wiretapping laws. Whether these laws are unconstitutional is a question for another day, years from now, I'm sure, as the parties now proceed with pre-trial discovery.

Tuesday, March 22, 2011

Supreme Court gives one to the workers

Under the Fair Labor Standards Act, employees are protected from retaliation if they "filed any complaint," usually concerning overtime pay or some other entitlement under the FLSA. The question is whether those complaints have to be in writing. The Supreme Court says no. The complaints may be verbal.

The case is Kasten v. Saint Gobain Performance Plastics, decided on March 22. This 6-2 decision is remarkably favorable to employees, consistent with the Supreme Court's expansive interpretation of the retaliation laws over the last decade or so. The message is that the Court hates workplace retaliation in nearly all its forms.

I am sure that every member of Congress who helped draft this legislation in 1938 is dead, so there is no one who can come forward to say which interpretation is correct. This is why federal judges have to become experts in statutory construction. In this case, the majority decision is written by Stephen Breyer, who worked for a Congressional committee years ago helping to write statutes. The dissent is written by Antonin Scalia, known for his provocative view that "legislative history" is an unreliable method. The confusion over this issue is shown by conflicting interpretations by federal courts around the country. They were divided on whether complaints under the FLSA had to be in writing. The Second Circuit said they had to be written. As the Supreme Court notes in rounding up these divergent cases, in Lambert v. Genesee Hospital, 10 F.3d 46, 55–56 (2d Cir. 1993), the Court of Appeals said that the FLSA's antiretaliation provision does not cover informal complaints to supervisors. Lambert is now bad law.

How did the Supreme Court reach its conclusion? First, it noted that the word "filed" under the FLSA could go either way. Some dictionaries say that filed means a formal complaint; others say it could be an informal complaint. So the Court digs deeper, looking at the statutory purpose. Writing for the majority, Justice Breyer says that "an interpretation that limited the provision’s coverage to written complaints would undermine the Act’s basic objectives. The Act seeks to prohibit 'labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.' It does so in part by setting forth substantive wage, hour, and overtime standards. It relies for enforcement of these standards, not upon 'continuing detailed federal supervision or inspection of payrolls,' but upon 'information and complaints received from employees seeking to vindicate rights claimed to have been denied.'”

In addition, when the FLSA was enacted in 1938, many workers were illiterate and were not able to draft formal complaints about wages and hours. Justice Breyer asks the rhetorical question, "Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate,less educated, or overworked workers? President Franklin Roosevelt pointed out at the time that these were the workers most in need of the Act’s help."

The Court also finds that relaxing the filing requirement would make it easier to enforce the statute. "To limit the scope of the antiretaliation provision to the filing of written complaints would also take needed flexibility from those charged with the Act’s enforcement. It could prevent Government agencies from using hotlines, interviews, and other oral methods of receiving complaints. And insofar as the antiretaliation provision covers complaints made to employers, it would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act."

That the Secretary of Labor, who enforces the FLSA, has long interpreted the statute to allow workers to make informal and verbal complaints further persuades the Court that they do not have to be in writing in order for the anti-retaliation provision to kick in.

I imagine that one objection to the Court's ruling is that, without a written complaint, an employee can claim that he was fired in retaliation for making a verbal complaint about overtime or some other work-related issue under the statute. Since the complaint was verbal, there is no way for management to disprove the plaintiff's testimony that he made that complaint, and that the best way to prevent this quandary is to require a written complaint that can settle that dispute once and for all. The Court does not address that objection, but surely someone articulated it.

Justices Scalia and Thomas dissent. They believe that "filed any complaint" under the statute does not protect any complaints to management, written or verbal. Under their statutory interpretation, these Justices argue that "complaint" only means complaints to a government body. Later on in the dissent, Justice Scalia says something about Judge Judy.

Monday, March 21, 2011

Morphing is illegal

We know that child pornography is illegal. it is also illegal to morph images to create a different kind of child pornography. Someone raised a First Amendment objection to the morphing prohibition, but the Second Circuit will have none of this.

The case is United States v. Hotaling, decided on February 28. Child pornography has no First Amendment protection, one of the few areas where the government can restrict speech on the basis of content. This is because making child pornography illegal is a good way to drain the swamp; making it illegal to possess these images makes it less likely that someone else will create them. Also, the psychological trauma associated with having your naked child images living on forever in someone's hard drive or elsewhere makes it a compelling governmental interest to stop child porn.

The guy in this case was morphing images (probably through computer technology) to place adult naked bodies below the faces of children. His computer hard drive showed that they were placed in folders that could be used to create a website. The images were not distributed online, however. Taking up an issue that the Founding Fathers never dreamed up in a million years, the Court of Appeals (Newman, Hall and Restani) finds that "morphed child pornography utilizing the face of child and body of an adult is not protected expressive speech under the First Amendment."

In 2002, the Supreme Court said that virtual child pornography is protected by the First Amendment because it does not use pictures of actual minors. The Second Circuit adopts the views of a sister Circuit in distinguishing that case:

We agree with the Eighth Circuit that the interests of actual minors are implicated when their faces are used in creating morphed images that make it appear that they are performing sexually explicit acts. In this case, even though the bodies in the images belonged to adult females, they had been digitally altered such that the only recognizable persons were the minors.

Furthermore, the actual names of the minors were added to many of the photographs, making it easier to identify them and bolstering the connection between the actual minor and the sexually explicit conduct. Unlike the computer generated images in Free Speech Coalition, where no actual person’s image and reputation were implicated, here we have six identifiable minor females who were at risk of reputational harm and suffered the psychological harm of knowing that their images were exploited and prepared for distribution by a trusted adult.

Wednesday, March 16, 2011

Hurt feelings not enough in First Amendment case

The publisher of the Westchester Guardian was hounding the mayor of the City of Yonkers in print. Local newspapers do that. Mayor Amicone fought back, though, giving a speech in which he called the publisher a "convicted drug dealer," "Albanian mobster" and "thug" who would open "drug dens" and "loot" the "pension funds" of Yonkers residents. Is this retaliation under the First Amendment?

The case is Zherka v. Amicone, decided on March 2, one of several cases coming down the pike between this newspaper and public officials in Westchester. Zherka says these public comments were defamatory per se and therefore injurious under the First Amendment. This is a creative argument, and maybe the only one that Zherka; he cannot rely on the traditional "chilling effect" argument to prove his injury in light of his newspaper's continued attacks against the mayor, calling him "Dumb, Dumber and Dumbest" and accusing him of "rap[ing] taxpayers" and "reward[ing] cronies."

The Court of Appeals (Wesley, Chin and Pooler) finds that Zherka does not have a case. Under Second Circuit case law, to win under the First Amendment, people like Zherka have to show that the public official's response to his speech chilled further speech. Defamation per se (i.e., calling the plaintiff a criminal) is not going to cut it, not without allegations that the defamatory comments caused the plaintiff actual harm. While defamation per se cases presume harm when you call the plaintiff a criminal, that lenient model actually hurts Zherka here because he does not allege in his Complaint that the mayor's comments went beyond hurt feelings. As Judge Wesley puts it:

We have before us, in a sense, “speech against speech.” Zherka’s publications are core protected speech under the First Amendment. Amicone’s alleged retaliation did not come in the form of denial of a permit or threat of a lost contract. Rather, it was a group of statements – none very kind – about Zherka. Retaliatory insults or accusations may wound one’s soul, but by themselves they fail to cross the threshold of measurable harm required to move government response to public complaint from the forum of free speech into federal court.

Monday, March 14, 2011

Batson challenge fails where lawyer did not feel "comfortable" with black juror

As the parties picked a jury in a civil rights trial, counsel for defendant excused the only black juror. Plaintiff's counsel made a Batson challenge, arguing that defendant was doing this because of the juror's race. Counsel for defendant told the court that he excused the black juror because he "felt uncomfortable with her." The trial court denied plaintiff's Batson challenge, and he ended up losing the trial. The Court of Appeals affirms.

The case is Filozof v. Monroe Community College, a summary order decided on February 25. Batson is shorthand for the Supreme Court decision that says you cannot reject jurors during voir dire because of race. If the plaintiff makes a Batson challenge to the defendant's choice, the latter has to give a race-neutral reason. Is it race-neutral for counsel to say that he did not feel comfortable with the potential black juror?

In denying plaintiff's motion for a new trial, the trial court noted that "there were no comments of counsel during voir dire ... and that "in this case because counsel made no comments at all during voir dire and did not participate, there was no comments of that ilk,and there was really very little motivation to strike this particular juror." In the end, however, the trial court decided that, having viewed the demeanor of defense counsel, he concluded that "I'm not convinced that the use of the word or phrase that 'I'm uncomfortable with the juror' is, in the context of this case, another way of saying that I struck the juror because she happened to be African-American."

Our instincts may say that this discomfort level with the only black juror was inherently racial. But trial courts have discretion to make these rulings one way or the other. The Second Circuit (Pooler, Cabranes and Raggi) does not second-guess the trial court. The Court of Appeals explains it this way: first, feeling uncomfortable with the juror "may not have been illuminating, [but] it can hardly be taken as an admission that his peremptory strike was motivated by racial considerations. Second, the Supreme Court has held that even if the lawyer offers a "frivolous or utterly nonsensical justification for the strike," the party making the Batson challenge still has to show that it was racial. The Second Circuit finds that it was not "clearly erroneous" for the trial court to reject the Batson challenge. No new trial for plaintiff.

Friday, March 11, 2011

Freed from jail on appeal, but no false arrest case

Many false arrest cases fail. It's just a fact, even if the plaintiff was wrongly convicted and released from jail. That's what happened in this case.

The case is Hargroves v. City of New York, a summary order decided on February 22. It all started when a group of black males beat up and robbed a Chinese food delivery man, who told the police that he would could identify the attackers and that one of them wore an orange jacket. The police then found a group of black males walking along the street, and after detaining them, they had the delivery guy identify them from the police car, no easy task since his face was beaten up, his eyes were bloody and swollen and his glasses were broken. A jury convicted them of gang assault. A state appellate court reversed the convictions because that the police had no reasonable suspicion to detain them on the street, in part because the black "gang" was walking toward the scene of assault, they did not run away when the police approached them, and one of the defendants had a red and blue (and not orange) jacket. After these guys were released from prison, they sued the police for false arrest.

The Eastern District of New York denied summary judgment on the false arrest and malicious prosecution claim, but the case is immediately appealed on qualified immunity grounds. And that is where many false arrest cases die. The police get the benefit of the doubt in tough cases, even if in hindsight they did the plaintiffs wrong. If a reasonable police officer would have detained these guys, they get actual immunity from suit. This happens all the time, but you rarely see qualified immunity applied where the plaintiffs actually went to jail for a crime they did not commit.

How do the police get off in this case? The Second Circuit (Cabranes, Chin and Keenan [D.J.]), says the delivery guy assured the police he could identify his attackers. The Court reasons, "We cannot say that the physical infirmities alleged by plaintiffs -- the swollen face, a burst blood vessel in one eye, and damaged glasses -- necessarily precluded a reasonable officer from accepting Wu's assurances that he had reliably identified his attackers. Importantly, there is no evidence in the record that Wu's conduct prior to and during the show-up suggested any traces of blurred vision, or that his facial injuries required urgent medical care."

The other claims fall for similar reasons. Plaintiffs argue that the initial detention was simply racial profiling and that no one wore an orange jacket, but the Second Circuit says that a reasonable officer at night might have mistaken the red and blue jacket for an orange one since it contained reflective, light red inner lining. As "it was not unreasonable for the officers to think that plaintiffs matched the description provided by Wu" and "one member of the group was wearing a bright jacket of some kind that could reasonably -- if, albeit mistakenly -- be perceived as being a shade of orange," the police reasonably detained this large group of males near the crime scene.

So there you have it, folks. These guys actually go to jail and win their criminal appeals, and there are some factual disagreements about what happened on the night they were arrested, but they have no false arrest case because the police had arguable probable cause. This is how the courts resolve many false arrest cases, and for the Second Circuit this is not a remarkable ruling, which is why they issued it as a non-precedential summary order.

Wednesday, March 9, 2011

No First Amendment right to preach at high volume

A guy was preaching on the street at the top of his lungs, running afoul of the local noise ordinance. The police officer told him that he was allowed to preach, but that he had to lower his voice. The preacher insisted he had to preach the gospel with a loud voice, so the officer issued him a written warning. The preacher sues under the First Amendment.

The case is Costello v. City of Burlington, decided on February 14. The preacher, Costello, loses the case. The ordinance itself was deemed constitutional by the Court of Appeals some years ago. His only argument is that the officer's directive to lower his voice violated the Constitution.

So long as the government is not restricting speech to stifle content, it can usually get away with that restriction. We call this "time, place and manner," which means the content-neutral restriction is legal unless it burdens substantially more speech than necessary to keep the peace or the speaker has no reasonable alternative to get his message out. Costello cannot overcome the lenient time, place and manner test. The order to "keep it down" was not overbroad because Costello's voice could be heard more than 350 feet away on a quiet but busy street where people are trying to get on with their lives without someone screaming out the gospel. Moreover, he had other ways to preach the gospel. As Chief Judge Jacobs writes, "Costello protests that he is denied the opportunity to preach at the top of his lungs, to 'cry aloud' and 'lift up his voice like a trumpet.' It is obvious that this cannot be done in the time and place it was done and in a manner that respects the interests and rights of his fellow residents."

This is not a remarkable decision. Costello argued it pro se. I am not sure a lawyer would feel comfortable telling the Court of Appeals that someone has the right to scream and yell the gospel on a public street. What makes the decision interesting is the concurring opinions. Judge Calabresi wants no part of Judge Jacobs' response to Judge Pooler's concurrence, in which she suggests that the case is not open-and-shut, in part, because (unlike here) cases permitting noise restrictions usually involve mechanical amplification. Although she is sympathetic to street preaching, "which has a long history in this country," Judge Pooler would rule against Costello on qualified immunity grounds because any reasonable officer would believe it was not illegal to tell Costello to put a lid on it.

Judge Jacobs thinks that Judge Pooler is misreading a Supreme Court opinion from 1949, Kovacs v. Cooper, 336 U.S. 77, on the amplified/unamplified distinction. A concurrence in Kovacs ought to set Judge Pooler straight, Judge Jacobs writes, adding:

The plurality in Kovacs should be a corrective to a common fallacy of judicial thinking of which Judge Pooler’s concurrence is an apt illustration. Judges tend to overvalue the rights and interests of persons who bring constitutional litigation, while discounting to zero the rights of non-litigious persons whose interests are likewise affected and at stake--here, people who want to enjoy one another’s company at lunch, at home, or walking down the street; people who communicate by exchanging civil words; people who want to collect their thoughts while doing business and shopping; people who want to take in their choice of music, or worry, or think thoughts. This is a form of myopia.

Monday, March 7, 2011

No chill, no case for Westchester Guardian

The Westchester County District Attorney called the editor of a raucous weekly newspaper to protest the Westchester Guardian's coverage of local politics. Here's the crux of the dispute: "Plaintiffs allege that Janet A. DiFiore ... called Zherka from her private cell phone to complain about an article published in his newspaper and that this complaint chilled the newspaper's publication of subsequent articles involving DiFiore or her husband personally and inflicted emotional distress on Zherka."

The case is Zherka v. DiFiore, a summary order decided on February 8. There's a few problems with this First Amendment action, which is why the case is dismissed. First, there is no evidence that DiFiore made that phone call in her capacity as District Attorney, which means that she was not a state actor when she allegedly pressured the newspaper to stop running its negative articles, which means that Zherka cannot sue her under the First Amendment. The Court of Appeals (Livingston, Katzmann and Winter) writes: "crediting Zherka's version of the conversation between him and Ms. DiFiori, in which he claims she first identified herself as the district attorney, we agree with the district court's conclusion that 'there is no indication that [DiFiore] intended to, or did, exercise any 'power possessed by virtue of state law.'"

But even if the District Attorney did intend to wield her official authority when she called Zherka, he cannot sue her because he has no standing to do so; there is no evidence that the phone call chilled Zherka's speech. Without a chilling effect, there is no First Amendment violation. Zherka said that the newspaper published "muted" articles in the wake of the phone call, in fact, the paper began attacking DiFiore within a month of the phone call. That's not a chilling effect.

So what starts out as an interesting lawsuit occasioned by the District Attorney's angry phone call to the publisher fizzles out because she called as a private citizen and, in any event, the newspaper did not hold off on its critical coverage.

Thursday, March 3, 2011

Times are tough for First Amendment plaintiffs these days

Norman Morey was the head custodian at a public high school when he discovered an asbestos problem in the gym. He repeatedly told the school district official responsible for asbestos abatement that the district was not doing enough to handle the problem. The district brought up Morey on disciplinary charges, and he was fired. If the charges are retaliatory, is the district violating Morey's First Amendment rights?

The case is Morey v. Somers Central School District, a summary order decided on February 9. I represented the plaintiff on appeal. Morey would have a case if his speech about the need for asbestos abatement was protected speech under the First Amendment. It isn't. Asbestos abatement certainly is important, but since Morey was head custodian, the speech was pursuant to his official job duties. As far as the law is concerned, Morey was just doing his job. He was not speaking as a concerned citizen.

In 2006, the Supreme Court in the Garcetti case ruled that speech made pursuant to the plaintiff's official duties is not speech on a matter of public concern, a necessary requirement for protected speech under the First Amendment. The Garcetti ruling changed things. Prior to Garcetti, at least in the Second Circuit, any speech touching on an important public matter was protected under the Constitution, even if that speech related to the plaintiff's job duties. Post-Garcetti, the Second Circuit scaled back its generous protections under the First Amendment in Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), a case in which Judge Calabresi dissented on the basis that his colleagues had too-broadly interpreted Garcetti to mean that a teacher's grievance was work-related and not speech on a matter of public concern.

Judge Calabresi was on the panel in Morey, along with Judges Lynch and Wesley. It was clear that Judge Calabresi doesn't like the direction things are taking post-Garcetti, but his dissent in Weintraub was ... a dissent, and not the majority. Morey loses the appeal.

Tuesday, March 1, 2011

Supreme Court sustains the Cat's Paw

Making it a bit easier for plaintiffs to prevail in their discrimination claims, the Supreme Court holds that the employer may be liable even if the decisionaker did not harbor any discriminatory bias toward the plaintiff. This ruling sustains the so-called Cat's Paw theory of discrimination.

The case is Staub v. Proctor Hospital, decided on March 1. In this case, the plaintiff sued under USERRA, the law that prohibits discrimination against employees with military obligations. Two supervisors made it clear they did not like Staub's military commitments, and they prepared reports that criticized his violation of company policy. Staub argued at trial that these reports were false. The decisionmaker terminated Staub's employment, in part, because of these negative reports. Although the jury found in Staub's favor, the Seventh Circuit threw out the verdict, holding that the nondecisionmaker supervisors did not exercise "singular influence" over the termination decision.

The Supreme Court rejects the Seventh Circuit's narrow standard and sets forth the following rule: "if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is the proximate cause of the ultimate employment action, then the employer is liable under USERRA." This holding will certainly apply under Title VII and the Age Discrimination in Employment Act, among other employment laws.

First, what does Cat's Paw mean? It derives from one of Aesop's fables, where "a monkey induces the cat by flatter to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing." The Cat's Paw theory recognizes that many workplaces have multiple decisionmakers and that supervisors with discriminatory animus may influence an otherwise neutral final decisionmaker. That nefarious influence allows the plaintiff to win.

But, read closely, this decision requires the plaintiff to show that the biased supervisors intended that the plaintiff suffer an adverse employment action. The Court writes: "The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did cause, an adverse employment action." This rule compliments the Court's observation that "when a decision to fire is made with no unlawful animus on the part of the firing agent, but partly on the basis of a report prompted (unbeknownst to that agent) by discrimination, discrimination might perhaps be called a 'factor' or a 'causal factor' in the decision; but it seems to us a considerable stretch to call it a 'motivating factor.'" To win under the Cat's Paw, the plaintiff has to show the biased supervisors used their influence on an unsuspecting decisionmaker to get the plaintiff fired (or demoted).

Confirming that the lower-level supervisor's discriminatory actions may be imputed to the company only when the supervisor intended that the plaintiff suffer an adverse action, analyzing the Cat's Paw rule to the evidence, the Supreme Court finds that the Seventh Circuit should not have vacated the verdict because there was evidence that the two supervisors who disliked Staub's military obligations and wrote up negative reports about his employment "had the specific intent to cause Staub to be terminated" based on testimony that they wanted to "get rid of" Staub. The Court concludes that "a reasonable jury could infer that [the supervisor] intended that Staub be fired."

In the Second Circuit, relevant language in this area reads like this: "We recognize that the impermissible bias of a single individual at any stage of the promoting process may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the promotion process." Bickerstaff v. Vassar College, 196 F.3d 435, 450 (2d Cir. 1999). This language may run afoul of the new rule set forth in Staub, which requires more than just a discriminatory link in the chain leading to the plaintiff's termination.