Police officer survives Garcetti objection in free speech retaliation claim

A New York City police officer sued his employer because he suffered retaliation after he complained internally about a quota system within the department, "causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers" and that the quotas were hurting the precinct's relationship with the community." Is this free speech? It might be.

The case is Matthews v. City of  New York, a summary order decided on November 28. Public employee speech claims have been difficult to win ever since the Supreme Court in 2006 held that speech arising from the plaintiff's official job responsibilities is not protected. This was the Garcetti case. Under Garcetti, the public employee has no First Amendment protection from retaliation even if his speech raises a matter of public concern.

The district court threw out the case, holding that the quota objections arose from Matthews' job duties. Technically, that was true. But dismissal was premature. Discovery is needed to see if plaintiff's speaking pursuant to his job duties. The Court of Appeals (Raggi, Hall and Carney) says:

The record in this case is not yet sufficiently developed, however, to determine as a matter of law whether Officer Matthews spoke pursuant to his official duties when he voiced the complaints made here in the manner in which he voiced them. See Garcetti v. Ceballos, 547 U.S. at 424–26 (distinguishing between giving employees an internal forum for their speech and making certain speech a duty of employment). As we have recently observed, “whether a public employee is speaking pursuant to h[is] official duties is not susceptible to a brightline rule.” ... The matter may require some inquiry into “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” Here, some discovery as to these matters is necessary before it can be decided whether Matthews can or cannot pursue a First Amendment retaliation claim in this case.

This case is a summary order and therefore it carries little precedential value. But it has its moments for plaintiffs.Garcetti cases have fared poorly in the Second Circuit over the last six years. Matthews certainly spoke out on matters of which he was aware from his daily responsibilities. But was his speech part-and-parcel of his ability to do his job? That's the legal standard in the Second Circuit. Matthews' speech was certainly important. The Second Circuit is reluctant to dismiss the case completely and thinks some discovery and document review may shed further light on all of this.

School district was deliberately indifferent to endless racial harassment

School districts are liable for student-on-student harassment if they are deliberately indifferent to the problem. This legal standard contrasts with the more plaintiff-friendly negligence standard governing sexual harassment in the workplace. The Supreme Court devised the higher standard in part because kids do tend to tease each other at school and the school cannot be on the hook for everything. But these cases are still winnable. The plaintiff in this racial harassment case won $1 million in damages.

The case is Zeno v. Pine Plains Central School District, decided on December 3. My office represented the plaintiff at trial and on appeal. Anthony was racially harassed by various classmates for 3.5 years after he moved to Dutchess County from Long Island. The Second Circuit ruling details the harassment on a year-by-year basis, and if you think that we are beyond racial hatred in this country, take a look at pages 2-14 of the opinion. The verbal and physical harassment -- in the classroom, in the hallways, on the bus, in the cafeteria, and elsewhere -- was relentless. Anthony and his mother repeatedly complained to the school about the harassment. The family's lawyer and the local NAACP and Dutchess County Human Rights Commission also complained about it.

The question on appeal was whether the jury could find that the district was deliberately indifferent to the harassment despite punishing individual offenders and sponsoring an anti-bullying seminar and diversity program. (I will talk about the damages portion of the opinion in a later post). The Second Circuit (Chin, Cabranes and Livingston) writes, "In some circumstances, prompt disciplinary action against a student's identifiable harassers may show that a school district was not deliberately indifferent. The sufficiency of a response, however, must be considered 'in light of the known circumstances,' and as the 'known circumstances' change, the sufficiency of a response may also have to evolve." The Court of Appeals has never quite put it this way before, directing schools to reconsider their approach to the harassment if it gets worse or the remedial measures are not working. It cites a Sixth Circuit ruled to the effect that "where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances."

Here, five circumstances should have informed the District's continued response to student harassment of Anthony. First, it knew that disciplining Anthony's harassers -- through suspensions or otherwise -- did not deter others from engaging Anthony in serious and offensive racial conduct. (During his sophomore year alone, Anthony was subject to eight separate incidents of harassment.) Second, the harassment directed at Anthony grew increasingly severe. Of the eight incidents that occurred during his sophomore year, two were violent, three were threats on his life, and two resulted in Orders of Protection against the students involved. Third, the disciplinary action had little effect, if any, on the taunting and other hallway harassment, which persisted until Anthony left SMHS, three-and-a-half years after he arrived. Fourth, the District knew that the harassment predominantly targeted Anthony's race and color. And fifth, as early as November 2005, the Dutchess County HRC and N.A.A.C.P. offered the District both a free shadow, to accompany Anthony during the school day, and a free racial sensitivity training series.

The jury could find that the District's remedial response was inadequate and deliberately indifferent for a variety of reasons. While it disciplined many of the students who harassed Anthony, "it dragged its feet. before implementing any non-disciplinary remedial action -- a delay of a year or more. While many cases address delays preceding a school's initial response, once a school is aware of its ineffective response, a delay before implementing further remedial action is no less problematic. At some point after Anthony's first semester, the District should have done more, and its failure to do more "effectively caused" further harassment." Also, "the District's additional remedial actions were little more than half-hearted measures. For example, it coordinated mediation, but did not inform Mrs. Zeno when or where it would be held. Its additional programs either (1) did not focus on racial bias or prejudice, or (2) made attendance optional. This was evident in the District's training for students, parents, and teachers; it was for one day only and focused on bullying and sexual harassment, rather than racial discrimination."

These programs were not enough. The Court writes, "The record indicates that these programs were selected in lieu of the free shadow or racial sensitivity training offered by the Dutchess County Human Rights Commission and N.A.A.C.P. in November 2005, almost a year earlier and only nine months after Anthony was first harassed. Although actually eliminating harassment is not a prerequisite to an adequate response, the District's actions could not have plausibly changed the culture of bias at SMHS or stopped the harassment directed at Anthony." Moreover, the jury could find that "the District ignored the many signals that greater, more directed action was needed."

The deliberate indifference test is still evolving. The Second Circuit borrowed its reasoning from other circuits. That Anthony endured more than three years of harassment did not help the school's position on appeal. Nor did it help that the school ignored certain remedial options that could have made the harassment stop. Liability is affirmed.

The son dies and the parents are arrested: no case

Wrongful death cases against the police are difficult to win for a number of reasons. First, the victim is dead and therefore cannot contradict police accounts of what happened. The plaintiff's relatives -- who bring the lawsuit on his behalf -- may not have any witnesses who can support the argument that the police acted in haste. Second, it's usually (let's face it) difficult people who get into a shootout with the police. Juries like the police and dislike troublemakers on the street. Of course, all this assumes the case reaches the jury. It may not.

The case is Fortunati v. State of Vermont, a summary order decided on November 26. The police shot and killed Joseph Fortunati while attempting to take him into custody. His family sought a jury trial because of a factual dispute over whether Joseph pulled a gun on the police before they opened fire on him. There are some factual disputes in the record, but not enough to undercut as a matter of law the police's argument that they had no choice but to pull the trigger. The Court of Appeals (Jacobs, Pooler and Hall) says,

None of the small differences in testimony Plaintiffs cite creates a genuine dispute as to whether Joseph aggressively drew or reached for his gun immediately prior to being fired upon by the TSU team members. Some officers were able only to see Joseph reach for his waist, but small differences in testimony simply do not rise to the level at which a reasonable jury could find the officers’ credibility damaged. The district court was therefore correct to conclude that there was no genuine dispute of material fact as to the credibility of the officers.

The record also shows that two of the officers shot at Joseph. Here's where the qualified immunity kicks in. Qualified immunity gives police officers the benefit of the doubt in close cases. So that even if the officers violated Joseph's rights, they acted reasonably under qualified immunity. "The Troopers understood Joseph to either be armed or in close proximity to the gun he had brandished hours earlier. The intervening nine hours did not diminish the danger Joseph posed to police and the surrounding community. Thus, the use of non-deadly force by the Troopers who deployed the bean bag ammunition against Joseph meets the objective reasonableness test."

Joseph's parents also sued the police for false arrest after the police detained them for 45 minutes in the aftermath of their son's death. Again, on paper, the police violated their rights in detaining the parents (it does not look as if the parents were charged with any offense). But the police acted objectively reasonably, at least in the eyes of the Court of Appeals:

The encounter was tense; it took place at a crime scene; and the officers had reason to believe that Robert might be armed. The officers were undoubtedly aware that the Fortunati family would be upset over Joseph’s death, and they could also reasonably protect against disruption of the scene of the shooting and interference with their investigative duties. It was therefore objectively reasonable for Defendants to believe that Susan and Mark’s detention did not rise to the level of an arrest, notwithstanding that they may have been detained for a period of up to forty-five minutes after Robert had been taken into custody.

One more try for the inmate litigant

We have not yet reached the point where pro se inmates are prohibited from filing lawsuits against their jailors. I'm sure if such a measure came up for a popular vote, no inmate would be allowed to bring lawsuits, at least if they cannot find a lawyer willing to take on the risks of the litigation. That day is not upon us, probably because the anti-litigation forces have not thought about such a ballot proposal. In the meantime, we are reluctant to pull the plug. We know that inmates get slapped around when no one's looking.

The case is DeBoe v. DuBois, a summary order decided on November 27. Plaintiff's civil rights lawsuit against Orange County corrections officers was dismissed. The district court said that DeBoe's complaint did not state a claim under Rule 12(b)(6). The Second Circuit (Walker, Katzmann and Hall) reinstates the lawsuit because plaintiff has the right to re-plead his failed claims. The Court of Appeals reasons:

In his complaint, DeBoe alleged that, after he refused [Orange County Correctional Facility] officer Kessner’s “sexual demands,” Kessner threatened DeBoe, “punish[ed]” him, and instituted “[p]unitive retaliations.” Given these allegations, we cannot say at this juncture that, if the district court had provided DeBoe with an opportunity to amend his complaint, he would have been unable to state a § 1983 claim under the due process provisions of the Fourteenth Amendment. We therefore find that a remand is necessary to permit DeBoe to amend his complaint against the OCCF defendants.

Who knows what happened to this guy at the Orange County Jail? The Complaint was probably too conclusory to exit the starting gate. The Court of Appeals knows the plaintiff is an inmate who doesn't know how to draft a complaint. But his conclusory allegations may lead to something, so he gets another chance.

Second Department upholds sexual harassment verdict

Any lawyer who prepares clients for deposition will certainly advise him not to volunteer anything. Any lawyer who takes depositions knows to ask enough questions to box in the witness on critical facts before closing out the deposition. How does this play out at trial?

The case is Cheathem v. Ostrow, decided by the Appellate Division, Second Department, on November 21. My law partner and I tried the case, and I argued the appeal. This is a sexual harassment case that went to trial in Orange County Supreme Court in February 2009. The plaintiff worked for a small employer who persisted in seeking sex and groped and touched her over the course of two weeks, causing her quit her job because she couldn't take it anymore. At deposition, counsel asked her to describe the harassment. Each time, she testified about more incidents. But plaintiff was never asked the "close out" question that would box her in, i.e., "have you told me everything he did to you?" So, at trial, she testified for the first time that her employer wanted to play "Simon Says" at work. He took off his shirt, suggesting that she do the same.

On cross-examination, defendant's counsel wanted to impeach plaintiff for not testifying about Simon Says at deposition. The trial judge said this was impermissible because plaintiff did not have the opportunity to testify about this in deposition. Plaintiff went on to win this he-said she-said case; the jury awarded her $25,000 for pain and suffering. The Appellate Division affirms, reasoning that the trial court did not abuse its discretion in limiting the scope of cross-examination:

At trial, the plaintiff testified that her employer, the defendant Stephen Ostrow, required her to play the game “Simon Says,” and that during this game, he instructed her to hop on one foot and expose her bare chest to him. Although the plaintiff did not testify about this event during her deposition, the plaintiff was not asked in her deposition whether she testified to every alleged instance of sexual harassment. Under these circumstances, the use of the plaintiff’s deposition testimony to impeach this portion of her trial testimony would have been confusing and unfairly prejudicial, and the Supreme Court properly precluded defense counsel from doing so.

A contrary ruling would allow the jury to think the plaintiff was making up the story because she did not mention Simon Says at deposition. There is nothing like getting the plaintiff to admit that her account was omitted (or different) from her prior sworn testimony. In a close case, that kind of impeachment can turn the case around. What this case tells us is that the plaintiff should not volunteer testimony at deposition, and that defendants have to box-in the plaintiff so there are no surprises at trial.

Second Circuit awards summary judgment to false arrest plaintiff

The Court of Appeals has affirmatively granted summary judgment on a false arrest claim in favor of the plaintiff, who was arrested for third-degree menacing after he approached a woman in her driveway and asked questions about her family and accused her of sideswiping his vehicle. While the district court granted summary judgment to the defendant police officers, that ruling is reversed. Instead, the plaintiff wins liability on appeal. 

The case is Ackerson v. City of White Plains, decided on November 29. The police report said that Ackerman went to a woman's house and claimed that she sideswiped his car that day. The woman said that her husband was driving the car.. The woman had heard that plaintiff was a stalker and she feared for her safety. Plaintiff also asked about her daughter. The district court held that the officers had probable cause to arrest this guy for menacing, knocking out the case. The Court of Appeals reverses, and the plaintiffs wins the case. This is rare. Normally, summary judgment in favor of the defendants is reversed and the case is remanded for trial. What makes it even more unusual is that false arrest cases are hard to win because the police are often given the benefit of the doubt and probable cause carries a low threshold.

There is no probable cause as matter of law to arrest plaintiff for menacing. Here's the law on menacing in New York:

"A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.” N.Y. Penal Law § 120.15. The defendant must take a physical action with the intent to make another reasonably afraid of an “imminent danger; that is, the perceived danger must be immediate.”

In addition, "[o]ral statements alone do not constitute a physical menace and must be accompanied by a physical action beyond approaching someone to talk with them." Third-degree menacing also requires a well-founded fear of imminent physical injury. As the Court of Appeals (Wesley, Chin and Larimer [D.J.] sees it, "Ackerson approached the woman, came within a few feet of her in her driveway, asked her questions, and left. ... [T]he woman never stated that she felt physically threatened or that Ackerman took any assaultive actions." There was no probable cause, and there was also no qualified immunity for the officers since, the Second Circuit holds, no reasonably competent police officer would believe there was probable cause to arrest plaintiff for menacing. "Being tall, approaching someone, and asking them questions (even in an accusatory tone) does not arguably satisfy the elements of any crime." 

How to draft a notice of appeal

You think it's easy to write up a notice of appeal. Just pull it from your hard drive and change the caption. You'd better take another look at that template.

The case is Gusler v. City of Long Beach, decided on November 26. The plaintiff sued the City and 12 individual defendants under 42 U.S.C. sec. 1983, claiming retaliation. All the defendants moved to dismiss; nine were successful in getting the claim dismissed. As for three of the defendants, the district court denied their motions to dismiss on qualified immunity, and they took up an interlocutory appeal. So counsel for defendants filed a notice of appeal that read:

Notice is hereby given that the defendant Nassau County hereby appeals ... to the extent that the [District] Court denied defendants' motion to dismiss the claims against the individual defendants on the grounds of qualified immunity.

Here's the problem: while the City of Long Beach is situated in Nassau County, Nassau County is not a party to the case. Somebody blew it. But a good lawyer can work with the rules to get what he wants. Or he can at least try. Under Federal Rule of Appellate Procedure 3(c)(1)(A), the notice of appeal has to “specify the party or parties taking the appeal by naming each one in the caption or body of the notice” and permits “an attorney representing more than one party [to] describe those parties with such terms as ‘all plaintiffs,’ ‘the
defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all defendants except X.’”

The notice of appeal does not quite say the three defendants want to appeal. So it's defective. The only argument for defendants to save the appeal (a proper notice of appeal is jurisdictional) is that their names are in the caption of the notice of appeal. That won't work. The Court of Appeals (Jacobs, Carney and Gleeson [D.J.]) says:

the reference in Rule 3(c)(1)(A) to “naming [the party] in the caption” is best understood to mean that the notice of appeal is sufficient even if the party taking the appeal is named nowhere but in the caption if--and only if--it is manifest from the notice as a whole that the party wishes to appeal. The notice of appeal then meets the requisite of “specify[ing] the party or parties taking the appeal.”

In addition, "An appeal must not be dismissed ... or failure to name a party whose intent to appeal is otherwise clear from the notice." This notice of appeal doesn't work because the three defendants' intent to appeal is not clear. The Second Circuit says, "The three defendants against whom claims remain are among the parties listed in the caption, but the body of the notice states that someone else is appealing the district court's order."

As the Court of Appeals notes, "The statement in the text of the notice--that the appeal concerns the district court’s order 'to the extent that the Court denied defendants’ motion to dismiss the claims against the individual defendants on the grounds of qualified immunity'--may give reasonable grounds for concluding that only the individual defendants have an interest in appealing." However, the notice of appeal is still ambiguous because it says that all the defendants want to appeal, including the ones who won their motion to dismiss the case. "And if it should transpire in the future that it was error to dismiss the claims against them, it is not clear whether they would be bound by any decision we issued in this appeal with respect to their entitlement to qualified immunity. Thus, the notice fails to meet the basic requirement of informing the court and the opposition of who is taking the appeal."

If you want to know the policy reasons for the above rules, read the opinion. The rules do allow for some flexibility, but the Court of Appeals will not bend them to help the defendants in this case. The Court concludes, "Because the notice of appeal did not specify which defendants were taking an appeal of the district court’s decision, we lack jurisdiction to consider their appeal."

Courtroom closure during voir dire gets defendant a new trial

This case tells us a few things: first, that a seemingly inconsequential technicality may entitle a convicted felon to a new trial under the Constitution. And second, lawyers really ought to keep up with case law developments.

The case is United States Gupta, decided on November 8. During jury selection, the defendant's brother and his companion were asked to leave the courtroom because there was no room for them in light of the large jury pool and also to ensure that potential jurors did not hear anything about the case. Defendant's lawyer had no idea this was even happening; he was too busy conducting jury selection. After defendant was convicted, he told his lawyer about the expulsion of his brother and companion. Meanwhile, the case was on appeal to the Second Circuit. But in light of a recent Supreme Court decision that addressed when the public may be excluded from jury selection, counsel told the Court of Appeals about the expulsion for the first time and the case was remanded to the district court for factfinding on this issue. That recent Supreme Court decision helped defendant here.

Back up on appeal, the Court of Appeals vacates the conviction. The courtroom closure was unjustified under Supreme Court precedent. The government even concedes this in its appellate brief. But the government says this was a trivial courtroom closure, you know, no harm no foul. The Court of Appeals (Parker, Walker and Hall) disagrees, reasoning:

Whatever the outer boundaries of our “triviality standard” may be (and we see no reason to define these boundaries in the present context), a trial court’s intentional, unjustified closure of a courtroom during the entirety of voir dire cannot be deemed “trivial.”

Much of the Government’s argument rests on its observation that the voir dire proceedings here failed to produce any contentious issues. We do not necessarily disagree. Most voir dire proceedings are uncontroversial. But the public trial right is not implicated solely in discordant situations. Rather, “the value of openness” that a public trial guarantees “lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.” Thus, the regularity of the proceedings is an important impression with which the courts should leave observers. While a public presence will more likely bring to light any errors that do occur, it is the openness of the proceeding itself, regardless of what actually transpires, that imparts “the appearance of fairness so essential to public confidence in the system” as a whole.

Public employee fired for filing civil rights lawsuit

Did you know that, with few exceptions, public employees can be legally fired in retaliation for filing a non-frivolous lawsuit against their public employers? It's true. These are not First Amendment cases anymore. The plaintiff files these lawsuits at his own risk.

The case is Connolly v. City of Rutland, a summary order decided on November 5. Years ago, federal judges in the Second Circuit held that the First Amendment prohibited employers from firing public employees who filed civil rights cases against their employers. But if you follow First Amendment retaliation cases in the Second Circuit (and around the country) you know that public employee speech rights have dwindled over the last decade or so.

Connolly's initial lawsuit alleged that the City violated her due process rights under the Constitution in terminating her employment. Although it is not clear in the Second Circuit or district court opinions, Connolly was somehow retaliated against by the Town after filing that lawsuit. She claimed the First Amendment protected her from retaliation for bringing the lawsuit because it raised "a matter of public concern," the legal standard for protected speech by public workers. But the lawsuit does not raise a matter of public concern. While Connolly tries to satisfy this test by arguing that the due process case highlights the way the City manages its affairs, that argument doesn't cut it these days. The district court wrote:

Connolly argues that her lawsuit is protected speech because its content "is of significant importance and interest to the citizens of Rutland" and the lawsuit "concerns the means and methods by which the City's . . . budget and property tax rates were adopted." Connolly further asserts that the content of the speech "concerns [Mayor Louras's] claim, made in the City's Annual Report . . . that he had to eliminate funding for three full-time employees in order to achieve his political goal of `maintaining the tax rate.'" Connolly's original Complaint, however, raised claims arising out of Defendants' conduct in connection with her termination. Just as the plaintiff in Huth v. Haslin, 598 F.3d 70 (2d Cir. 2010), the nature of Connolly's lawsuit is personal to her and generally related to her own situation. Likewise, there is no suggestion in her complaint that Connolly seeks to "debate issues of discrimination" or obtain "relief against pervasive or systemic misconduct by a public agency or public officials." Nor is there any indication that this lawsuit is part of an overall effort to correct allegedly unlawful practices or bring them to public attention.

Nearly every public employee lawsuit against his employer will in some way implicate the public budget or personnel policies or some other matter of esoteric interest to the community. But you need more than that to show the lawsuit raised a matter of public concern. The district court said,

Connolly's lawsuit does not directly 'concern' the City budget or claims made in its Annual Report. Her lawsuit was neither brought to '[d]iscuss[ ] . . . current government policies,' nor 'aimed at uncovering . . . breaches of public trust.' Connolly's only argument related to the City budget pertains to her claim that the City's 'lack of funds' is a sham. This argument constitutes a complaint about Connolly's  'own dissatisfaction with the conditions of [her] employment.' Accordingly, Connolly's lawsuit does not pertain to a matter of public concern.

The Second Circuit (Raggi, Pooler and Leval) upholds this reasoning, and the case is dismissed.

Qualified immunity takes the fun out of due process lawsuit

In this due process case, the plaintiff was a tenured school guidance counselor at a Connecticut high school. Then she took on a guidance counselor position at a different high school because she couldn't get along with the principal at the first high school. Then she took on another guidance counselor position at a third high school (Cheney Technical High School) after getting assurances that she could return to the second high school in March 2008.

Before plaintiff could return to the second high school, she was informed in writing that her durational position at Cheney would be eliminated. Plaintiff argued that she had a protected property interest in her position and that the termination letter violated due process because she had no opportunity to be heard before losing her job. She loses the case on qualified immunity grounds.

The case is Coolick v. Hughes, decided on October 24. Under qualified immunity, the defendant wins the case if the law is not clearly established at the time of the violation. This means that even if in hindsight the defendant violated the Constitution, the defendant is off the hook because the case law was not clear at the time and the public official defendant is given the benefit of that doubt. Here, the defendant who fired the plaintiff did not proceed in an objectively unreasonable manner.

The Second Circuit has held that where the plaintiff is subject to a union contract that provides for adequate post-deprivation procedures, that contract is in effect due process. Those adequate post deprivation procedures constitute due process because some neutral arbitrator or decisionmaker can rule on whether you were treated fairly. That is what happened here. The Court of Appeals (Winter, Hall and Hellerstein [D.J.]) notes that plaintiff utilized the grievance procedures under the contract and she actually won that grievance, which reinstated her with back pay and benefits. She did not lose her tenured status even though she had moved around from position to position at the high schools.

But while plaintiff wins her grievance in proving that defendants violated the union contract, she cannot proceed with her Section 1983 claim under the Due Process Clause. (She proceeded with the federal suit in order to recover punitive damages and attorneys' fees). As a constitutional matter, this case falls into a grey area, the Court of Appeals says. Precedent suggests that there was no constitutional violation at all. But, at a minimum, the law was not clear at the time that plaintiff's constitutional rights were violated. This kills the lawsuit on qualified immunity grounds.

Bergstein & Ullrich sustain $1 million racial harassment verdict

NY court OKs $1M school racial harassment award

Published: December 3, 2012 Updated 1 hour ago

By LARRY NEUMEISTER — Associated Press

 

NEW YORK — One of the biggest awards ever issued for racial harassment in high school - $1 million - was upheld Monday by a federal appeals panel that said it was fair for a jury to conclude a school district should have done more to stop demeaning, threatening and violent conduct directed at a student.

The decision by the 2nd U.S. Circuit Court of Appeals in Manhattan left in place the award for Anthony Zeno, a former student at Stissing Mountain High School in Dutchess County. The award had been reduced from the $1.25 million a jury originally awarded the now 23-year-old haircutter during a 2010 trial. The appeals court said the award wasn't unreasonable given that payouts for harassment in similar cases have ranged from the low six figures to $1 million in one other instance.

The appeals court's opinion noted that Zeno is "dark-skinned and biracial, half-white, half-Latino." It said he "had been menaced, threatened and taunted" at a school where minorities represented less than 5 percent of the student population.

"He endured numerous serious - and sometimes life threatening - incidents of harassment," it said.
It said the Pine Plains Central School District, the defendant in a lawsuit brought by Zeno, knew Zeno was called numerous racial slurs during his 3 1/2 years at the high school from 2005 to 2008 and it was fair for a jury to conclude that school officials should have known that greater action was required beyond punishing individual students each time an attack occurred or offering optional sensitivity training sessions.

The opinion written by Circuit Judge Denny Chin said the appeals court concluded that the school district's "deliberately indifferent responses effectively caused Anthony's continued harassment."

Zeno's lawyer, Stephen Bergstein, praised the ruling, saying: "It's going to help a lot of kids."

"Districts will put better programs in place, keep a better eye out on the kids that are being harassed," he said. "The school was reactive, and you have to be proactive."

Lawyers for the school district did not return a call for comment Monday.

The harassment began in February 2005, weeks after Zeno transferred from Long Island, with racial slurs and frequent taunts. Over time, his harassment worsened, with a football teammate punching him, a student being restrained as he was about to throw a chair at him and his discovery of bathroom wall graffiti saying, "Zeno will die," the 2nd Circuit said. Other students filled his locker with garbage and taunted him with references to lynching, including displaying a noose and threatening to take a rope to the nearest tree, the court said.

The school district suspended some harassing students, typically for five days, and moved one student to another school. Twice, Zeno obtained orders of protection.

New York's concealed handgun law does not violate Second Amendment

The Supreme Court in 2008 gave life to the Second Amendment, holding that the right to bear arms prevented the District of Columbia from banning handguns in the home. That ruling, United States v. Heller, held for the first time that the Second Amendment protects an individual right to own a gun in certain cases. For the next 25 years, courts will have to explore the contours of that right.

The case is Kachalsky v. County of Westchester, decided on November 27. When it comes to interpreting the Second Amendment, the Second Circuit is just getting started. It holds that the Constitution allows New York to make you demonstrate "proper cause" before you can carry a concealed handgun in public.

This case arises from a series of plaintiffs who were denied permits to carry a concealed handgun.Unless you work in certain professions that need a gun as a job or safety requirement, potential handgun owners have to "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." A generalized need for self defense is not enough. You also have to undergo a mental health, criminal history and moral character check. Do these requirements violate the Second Amendment? They do not.

Heller does not mean that every plaintiff will win his Second Amendment case. Heller struck down the D.C. gun prohibition because a man's home is his castle, and constitutional law generally keeps the home off-limits to government intrusion. But once you step outside with a pistol, the government has a heightened interest in making sure that guns are not in the hands of every Tom, Dick and Harry who wants one. The Second Circuit (Katzmann, Lynch and Wesley) labors to find the right standard of review in a case like this. It settles on intermediate, and not strict, scrutiny. The gun restriction is legal if it is substantially related to an important government interest., the same test governing sex discrimination. The Court says, "while the state’s ability to regulate firearms is circumscribed in the home, 'outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self defense.' There is a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety."

The proper cause requirement under New York State law satisfies this test. The state decided 100 years ago to regulate handguns like this. The Second Circuit sums it up:

Given New York’s interest in regulating handgun possession for public safety and crime prevention, it decided not to ban handgun possession, but to limit it to those individuals who have an actual reason (“proper cause”) to carry the weapon. In this vein, licensing is oriented to the Second Amendment’s protections. Thus, proper cause is met and a license “shall be issued” when a person wants to use a handgun for target practice or hunting. ... And proper cause is met and a license “shall be issued” when a person has an actual and articulable—rather than merely speculative or specious—need for self-defense. Moreover, the other provisions of section 400.00(2) create alternative means by which applicants engaged in certain employment may secure a carry license for self-defense. As explained earlier, a license “shall be issued” to merchants and storekeepers for them to keep handguns in their place of business; to messengers for banking institutions and express companies; to state judges and justices; and to employees at correctional facilities. Restricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York’s interests in public safety and crime prevention.

Certiorari petition challenges Second Circuit's ruling in public employee speech case

In July 2012, the Second Circuit held that a Department of Social Services caseworker could be terminated in retaliation for her testimony in Family Court. While the caseworker challenged her termination under the First Amendment, the Northern District of New York and the Second Circuit disagreed, holding that her speech was unprotected under Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that the First Amendment does not protect speech made pursuant to the employee's job duties.

The case is Kiehle v. County of Cortland, summarized here. I represented Kiehle on appeal. On November 14, 2012, the Yale Supreme Court Clinic, in conjunction with my office, filed a certiorari petition with the United States Supreme Court, asking that the case be heard in light of disagreements among the federal circuit courts about whether the First Amendment prevents public supervisors from disciplining or terminating employees in retaliation for their good faith courtroom testimony. A copy of the petition is here.

2d Circuit affirms $48 million personal injury verdict

In this horrible case involving an American Airlines employee who was rendered a quadriplegic while riding on a baggage tractor that went awry, the jury awarded the plaintiff over $48 million in damages. The case raises a strange issue of how to assess whether the damages are too high under state law.

The case is Saladino v. American Airlines, Inc., a summary order decided on October 17. In federal cases involving state-law negligence, the defendant will argue that the damages are excessive, that is, they deviate materially from what would be reasonable compensation. That's the standard under CPLR sec. 5501(c). Defendants' counsel argued that the appropriate damages amount should be $5 million for past pain and suffering and $10,000 for future pain and suffering. The Court of Appeals (Newman, Lynch and Lohier) disagrees and upholds the $48 million.

In assessing whether the damages are too high, the federal court will decide the case as the New York State Appellate Division would. Since there are four regional Appellate Divisions in New York, the federal courts have a lot of case law to choose from. What makes this case unusual is defendants' argument: the federal court could only look at cases from the Appellate Division Second Department (which sits in Brooklyn and covers Long Island, parts of New York City and the suburban counties in upstate New York). I am sure that defendants cited some cases from the Second Department that low-balled serious pain and suffering cases. God knows where defendants came up with this argument, but the Court of Appeals rejects it out of hand, emphasizing that courts should take the case law where they can find it in trying to assess high damages awards:

defendants argue that the district court was legally required to examine only cases arising in the Second Department. But they have failed to point us to any binding authority for this proposition. Given the paucity of cases factually similar to Saladino’s, and in the absence of any evidence that community standards differ between, for example, Manhattan and Queens, we believe it would be odd for a federal court to disregard potentially informative cases arising in other parts of the state. Similarly, although it is true that awards affirmed by the Appellate Division are the most important to a federal court’s § 5501(c) analysis, that does not mean that unappealed state trial court verdicts or federal court verdicts are irrelevant. Thus, the district court did not err by examining federal cases, state appellate cases from outside the Second Department, or a state trial court decision.

Trial courts have more power than God

Trial courts have such broad authority to manage their calendars that even unfair decisions about when to proceed with trial are almost unreviewable on appeal. It's been said that federal judges are among the most powerful people in the country. There's some truth to that.

The case is Payne v. Jones, decided on October 3. This is a somewhat wild case alleging police brutality against a police officer who beat up a disabled veteran in the mental health unit of an emergency room. The officer attacked the veteran after the veteran kicked the officer in the groin after the officer insulted the plaintiff's Marine Corps tattoo and said that "Marines are pussies."

Right before trial, the officer-defendant became seriously ill and had to miss the start of trial because he was in the hospital. I imagine that many judges would put the trial over a few weeks. But in this case, the trial court forged ahead, telling the jury that the defendant was not able to make it to trial through no fault of his own. Even after the trial court got confirmation that defendant was in the hospital, he disallowed the jury from hearing this information, saying only that defendant was ill. Jones missed two out of five trial days but was able to testify in his defense.

Jones argues that the trial court abused its discretion in refusing to grant a continuance, or adjournment, of the trial, because the jury must have developed an unfavorable impression of him since Payne was trying his case against an "empty chair" for three days. Since this must have been a close case in light of the fact that Payne provoked Jones to attack him by kicking Jones in the groin, this is not a bad argument. Any advantage for the plaintiff could hurt Jones at trial. But the Court of Appeals affirms the verdict, reminding us that district courts have much latitude in managing trials and, besides, the trial court did tell the jury several times that Jones was unable to attend trial because of illness. If anything, the Court of Appeals (Leval, McLaughlin and Jacobs) says, had the trial court told the jury that Jones was in the hospital, it might have evoked sympathy for Jones, thereby unfairly prejudicing Payne.

No ADA remedy for terminated autistic volunteer

The Court of Appeals holds that the Amended Americans with Disabilities Act does not prevent a public nursing home from terminating the volunteer duties of an autistic adult accused of making women in the workplace feel uncomfortable through alleged sexual leering and other behaviors that management deemed erratic and inappropriate.

The case is McElwee v. County of Orange, decided on November 15. I briefed and argued the case. The plaintiff is a 35 year-old man who helped out around the home through its volunteer program. (The case is therefore brought under Title II and not Title I, which covers employment discrimination). Although plaintiff had volunteered there for many years, a female employee complained about his behavior in 2009, and his supervisor investigated and discovered that plaintiff had made employees feel uncomfortable over the years (though no one had lodged any formal complaints). Plaintiff was thus released from the program.

The Court of Appeals assumes that plaintiff is disabled under the Amended ADA, which provides an expanded definition of "disability" in rejecting narrow Supreme Court rulings on the issue. But the Court rejects plaintiff's argument that he was entitled to a reasonable accommodation. Along the way, suggesting this case raises some new issues, the Second Circuit (Chin, Raggi and Carney) cites a number of district court cases as well as extra-Circuit rulings. But the Court also borrows from Title III discrimination cases in holding that the employer is not liable for not accommodating the plaintiff when no such accommodation can work under the circumstances.

Plaintiff argued that management "should have (1) worked with him and his therapist to help him behave more appropriately in the workplace; and (2) worked with the Valley View employees who complained about him to educate them about McElwee's disability so that they would be more tolerant of his behavior." Plaintiff also argued that defendant should have known that he was harmless and did not intend to sexually harass anyone. The Court disagrees. These proposals would excuse past misconduct and, even if his behavior resulted from his disability, the accommodations would not work. "The first accommodation McElwee proposes is that Valley View should have spoken to his therapist or 'encourage[d] him to obtain particularized therapy to help him behave more appropriately in the workplace and . . . better interact with colleagues.' Nothing in the record before us, however, indicates that further therapy would have helped McElwee to refrain from his inappropriate conduct, either immediately or at any time in the near future." Moreover, any proposed accommodation that involves educating co-workers about his disability won't work, either. "This proposed accommodation does not even purport to address McElwee's inappropriate behavior; instead, it simply demands that others be more tolerant. Requiring others to tolerate misconduct, however, is not the kind of accommodation contemplated by the ADA."

Rule 68: live it, learn it or pay the price

Rule 68 is tricky because if the defendant makes a shrewd Rule 68 settlement offer, the plaintiff has to think long and hard about whether to settle the case or roll the dice. If the plaintiff rejects the offer and wins the case but recovers less money than the Rule 68 offer, then his attorneys fees entitlement stops on the day the Rule 68 offer was made. Yes, the rule is tricky, which is why lawyers have to read the rule carefully and really understand what it means.

The case is Barbour v. City of White Plains, decided on November 14. In this case, things went awry. Which is why the City of White Plains's Rule 68 offer was defective, costing it nearly $300,000 in attorneys fees and costs on a civil rights case valued at $30,000.

Rule 68 says the defendant can offer judgment to the plaintiff as well as a dollar amount. The plaintiff has 10 days to accept that offer. There's a penalty flowing from the rejection. Let's say the Rule 68 offer is in the amount of $30,000. If the plaintiff rejects it and goes to trial but only recovers $20,000, her attorneys fees are cut off from the date of the Rule 68 offer. But that Rule 68 offer should say that the plaintiff recovers $30,000 inclusive of attorneys' fees. The Supreme Court said so in Marek v. Chesny, 473 U.S. 1 (1985):

If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion, it determines to be sufficient to cover the costs.

In this case, defendant served a Rule 68 Offer of Judgment on three police misconduct plaintiffs in the amount of $10,000 each. The offer did not say that this amount included plaintiffs' attorneys fees entitlement. It only said the offer covered "all claims pending against defendants in this action." Although plaintiffs did seek attorneys fees in this case, attorneys fees are not a claim. The Section 1983 action against the City is the claim. So plaintiffs accepted the offer and moved for attorneys fees in the amount of about $267,000 plus another $13,000 in costs. The district court granted the fees motion. Rejecting defendants' argument that the Rule 68 offer impliedly included attorneys fees, the Court of Appeals (Raggi, Hall and Carney) affirms on authority of Marek v. Chesny.

The Court of Appeals further says that plaintiffs' settlement, $30,000 total, is not trivial or inconsequential such that full attorneys fees are warranted.

I would guess that defendants' counsel thought his Rule 68 offer covered attorneys fees and was surprised when plaintiffs' counsel moved for attorneys fees. The courts don't care. ou have to read the rules and then read the cases interpreting those rules. Reading is free. Not reading may cost you about $300,000. 

Who gets the tips at Starbucks?

If you buy coffee at Starbucks, there is a tip box on the counter. Management distributes the tips with its employees. Assistant Store Managers don't get those tips, though, only lower-level employees. Shift Supervisors do get tips, to the dismay of Baristas, the line-workers who have to share the tips with them. The question is whether ASM's and Shift Supervisors are eligible for tips under the New York Labor Law.

The case is Barenboim v. Starbucks Corp., decided on October 23. Actually, the case wasn't decided. The Second Circuit sends the case to the New York State Court of Appeals because it involves an open issue of state law. Under the Labor Law sec. 196-d "agents" may not "demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee." Are Shift Supervisors "agents"? What about ASM's? The New York Court of Appeals will have to worry about this, as the Second Circuit certifies the case for review by the state's highest court.

There are two cases here. The first is a putative class action filed by "baristas" who are the line workers that take customers' orders and serve the coffee and tea. They are aggrieved because they have to share the tips with Shift Supervisors, whom the baristas say are agents and therefore ineligible for tips. The second case is a putative class action of Assistant Store Managers who were denied the tips because Starbucks says they are "agents" under the Labor Law.

The Second Circuit is skeptical of the argument that shift supervisors are not entitled to tips, as they perform direct customer service, the kind of service that customers acknowledge when they throw money into the tip jar. But the Court of Appeals (Raggi, Winter and Livingston) is hesitant to reject this argument entirely. This issue is now in the hands of the New York Court of Appeals, which takes on cases like this from federal court when they raise an issue that is unique to state law and may implicate state public policy.

As for the case brought by the ASM's, these employees primarily serve customers and wear the same uniforms as their subordinates. They also have managerial tasks, but lack final authority over store decisions. They help the store manager with job interviews, employee discipline and preparing work schedules. In Starbucks's internal job descriptions, ASM's are listed as retail store support, and only store managers are considered management. This is a colorable argument, but it raises a matter that is unique to state law. "the same interpretative difficulty is present in [both] appeals: What factors should a court consider in determining whether an employee is his employer’s agent and, thus, ineligible to receive distributions from an employer-mandated tip pool? Because the meaning of the word 'agent' in § 196-d is not settled in New York case law, we defer decision and certify this question to the New York Court of Appeals." 

Supreme Court: the plaintiffs' lawyers get paid

If you think about it, the law that allows prevailing civil rights plaintiffs to recover attorneys' fees is one of the reasons we still have civil rights in this country. If lawyers are not willing to take on the case because no one can afford to pay them, the plaintiffs cannot challenge those violations. So when the Supreme Court takes on an attorneys' fees case, you should sit up and pay attention.

The case is Lefemine v. Wideman, decided by the Court on November 5. This case was under the radar. The Court issues a brief ruling without oral argument, which means that we did not see it coming and also that the Court thinks the case raises an easy issue on the availability of attorneys' fees when the plaintiff wins an injunction without money damages. Except that the case was not so easy because the Fourth Circuit went the other way on this issue. That Fourth Circuit decision is overturned.

The plaintiffs were anti-abortion protesters. The police told them to take down their signs because they were too graphic. As a result of this warning, the plaintiffs refrained from any further protesting for two years. The district court ruled that defendants violated plaintiffs' rights and it enjoined defendants from doing it again. But the district court denied attorneys' fees "under the totality of the facts in this case," and the Fourth Circuit affirmed.

The Supreme Court did not even bother to have the lawyers brief this case, much less hold oral argument. It says that the injunction altered the legal relationship between the parties by modifying the defendants' behavior in a way that benefits the plaintiff. That means the plaintiffs are prevailing parties, which means they are eligible for attorneys' fees. The Court sums up: "Before the ruling, the police intended to stop Lefemine from protesting with his signs; after the ruling,the police could not prevent him from demonstrating in that manner. So when the District Court 'ordered [d]efendants to comply with the law,' the relief given—as in the usual case involving such an injunction—supported the award of attorney’s fees." The case is remanded on the presumption that plaintiffs get their fees in the absence of  special circumstances. Those "special circumstances" rarely exist, so the lawyers will probably get paid.

Summary judgment reversed in disability discrimination case

The Court of Appeals has reversed summary judgment in a disability discrimination case, holding that the jury could find that the plaintiff was disabled under the Americans with Disabilities Act and that her employer offered pretextual reasons for her termination.

The case is Bar-Tur v. Arience Capital Management, a summary order decided on August 3. Plaintiff has Common Variable Immunodeficiency, which interferes with her ability to produce enough antibodies in response to exposure to antigens, resulting in greater vulnerability to viruses and infections. It significantly disrupts plaintiff's sleep and negatively affects her breathing. While the district court held that the disability does not substantially affect plaintiff's breathing in light of her "moderately active lifestyle," this reasoning improperly weighed the evidence. On this record, the jury can find that plaintiff's condition substantially affects her breathing and sleeping. This issue is for the jury.

The jury must also decide if plaintiff was fired because of her medical condition. "The record contained evidence that at the time of her demotion and discharge, Arience employees commented that: (1) Bar-Tur would be able to attend to her 'little doctor's appointments' now that she was relieved of certain responsibilities; (2) the demotion was 'supposed to be a personal opportunity for [Bar-Tur] to take care of some important things in [her] life'; and (3) Arience wanted to give Bar-Tur 'space to work through [her] health issues.'" This is enough to prove management's discriminatory motive, especially since the Second Circuit (Chin, Carney and Underhill [D.J.]) thinks the jury may find that management offered bogus reasons for her discharge in light of plaintiff's positive performance evaluation and numerous complimentary emails about her job performance.

Plaintiff also has a viable retaliation claim. She complained in-house about disability discrimination on November 4, 2008. An hour and a half later, she was ordered to go home without access to email and voicemail, and her computer system was terminated. She was fired two days later. This sequence of events, along with the evidence in support of her discrimination claim, give her a winnable retaliation claim. Summary judgment is reversed.

Habeas grants: giveth and taketh

The district court granted a habeas petition for an inmate who was convicted of murder without being able to thoroughly cross-examine the chief witness. That witness had implicated the defendant-inmate only after she learned that the defendant had accused of her participation in the crime. The Court of Appeals reverses and allows the state court conviction to stand.

The case is Corby v. Artus, decided on October 10. Inmates file habeas petitions to challenge their criminal convictions in federal court on constitutional grounds. This case is unique because the federal district court granted the habeas petition after the New York Court of Appeals upheld the conviction. But the inmate remains in jail.

Here's what happened. Burnett allowed Corby to sell drugs from her apartment. The buyer was later found dead. The detective later questioned Burnett about this, telling her that Corby had told him that Burnett might have been involved in the murder. Burnett then implicated Corby in the murder for the first time. At trial, Burnett was the key witness against Corby. But the judge restricted Burnett's cross-examination. Corby's lawyer wanted to get Burnett to admit that she blamed Corby for the murder only after the detective told Burnett that Corby had implicated her before she then threw Corby under the bus. This line of questioning would allow Corby to argue that Burnett killed the victim and that therefore she had a strong motive to lie and blame Corby for it. In preventing Corby's lawyer from pursing this cross-examination, the criminal court judge said that, for various reasons,  Corby's implication of Burnett was unreliable. In addition, allowing the jury to hear that Corby had implicated Burnett was unduly prejudicial to the government because the prosecution could not cross-examine Corby, who was protected by the Fifth Amendment protection against self-incrimination.

Yes, there is a right of cross-examination under the Sixth Amendment. No, that right is not absolute. The Court of Appeals (Walker, Winter and Cabranes) says the criminal court did not abuse its discretion in limiting the cross-examination. Corby had other ways to show that Burnett had a motive to lie in testifying at trial the Corby killed the guy, as Burnett herself had some involvement in the murder in that it took place in her apartment and helped remove the body and clean up the blood. There was also evidence of Burnett's hostility toward Corby in that, among other things, Corby had threatened Burnett's family. "To the extent she would falsely accuse anyone, Corby was 'the most plausible candidate.'" Any additional evidence of Burnett's motive to frame Corby would have had little probative value, but would have been unfairly prejudicial to the prosecution.

Court rejects challenge to vaccination policy

Parents in a Long Island school district sought a religious exemption from the New York requirement that they have their children vaccinated in order to attend public schools. The parents said this requirement violated their religious freedoms. The Court of Appeals rejects the claim.

The case is Caviezel v. Great Neck Public Schools, a summary order issued on October 12. The New York Public Health Law requires school districts to exempt students from certain vaccinations if they are contrary to the family's sincere religious beliefs. After a preliminary injunction hearing, the district court ruled against the parents because "they failed credibly to demonstrate 'that they hold genuine and sincere religious beliefs which prohibit vaccinations.'” After an evidentiary hearing, the district court denied the claim, and the Court of Appeals (Raggi, Hall and Carney) affirms. There was no genuine and sincere religious belief.

The district court ruling details why the plaintiffs did not have a sincere religious belief against vaccinations. Testimony from the mother shows that she did not think these vaccinations are safe . This testimony makes for interesting reading. In isolation, some of the testimony might have religious implications:

Q. Why did you make that application for an exemption from vaccinations?

A. Because inside of my religious beliefs, which are personal religious beliefs, I don't believe that vaccinations are necessary.

Q. And why is it that you don't believe vaccinations are not (sic) necessary?

A. I just believe if you look at the human being, if you look at the universe, we're divine, we're just divine. It's just the design is perfect. There's no other way to say it. It's just perfect.

THE COURT: What's perfect?

THE WITNESS: The design of human beings.

THE COURT: The design?

THE WITNESS: The design, like we're divine.

THE COURT: Design of what is perfect?

THE WITNESS: Of the human being, of nature, or this world, of this universe is divine, it's just perfect. I don't know. Look at how a child is created. Look at how it's just flawless. There's no other word for it. It's just divine.You know there's the seed, the egg, the baby starts to grow, the whole woman's body shapes so that it allows for that, the breast gets bigger and prepares for the milk. When it's time for the baby to be born, the body knows.

But Judge Spatt was not convinced. "The Court finds that one of the reasons Mrs. Caviezel objects to vaccinations is because it may not be safe. She testified that it may be harmful and may cause autism. Her concern in that regard is real, and understandable, but it is not based on a religious belief. Even though she feels that the body is divine and therefore does not need medications, she conceded that, on occasion she takes Motrin and essential oils, indicating a selective personal belief—not a religious belief."

There is also no substantive due process claim. Over the years, parents have challenged various immunization policies under the Due Process Clause. The Supreme Court has rejected those challenges, particularly in Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905), which rejected a challenge to a smallpox vaccination
mandate, and Zucht v. King, 260 U.S. 174, 176 (1922), which cited Jacobson in rejecting a facial challenge to public school inoculation requirement. These cases are dispositive. While the plaintiffs in this case argue that Jacobson was wrongly decided, that is no argument for the Court of Appeals, which is bound by Supreme Court precedent.

"What if you're hit by a bus?"

In this age discrimination case, the incoming CEO spoke to the plaintiff about his plans for the company. The CEO, Scott State, said to plaintiff, "Burt, you're 71 years of age, how long do you expect to work? What if you're hit by a bus, and we have to plan for the future." Six weeks later, plaintiff was fired as defendant's chairman. Your instincts would say that plaintiff has a great case. He doesn't.

The case is Fried v. LVI Services, Inc., a summary order decided on October 15. The "hit by a bus" comment is indeed evidence of age discrimination. That's not enough to win the case, though. Under Supreme Court precedent (Gross v. FBL Financial Services, 557 U.S. 167 [2009]), the plaintiff has to show that "but for" defendant's age bias, he would not have been terminated. This is unlike the standard governing Title VII discrimination cases, which requires only that the age or race be a motivating factor in the decision to fire the plaintiff. Under the "but for" test, the plaintiff loses.

The Court of Appeals (Raggi, Carney and Calabresi) says that "the overwhelming documentary evidence support[s] LVI's articulated non-discriminatory reason for terminating Fried: the need to ensure that CEO State would be free to manage the company as he saw fit." Moreover, the evidence shows that:

before State accepted the CEO position at LVI, Fried had provided written assurances to Board members that the new CEO would indeed be in charge of the company and that Fried would afford State “all the room he wants” to run LVI as he saw fit. Instead, the evidence shows that, almost immediately after State assumed the CEO position, Fried attempted to arrogate to himself fifteen areas of responsibility that went well beyond the most liberal construction of “strategic growth,” his designated area of responsibility as LVI Chairman. On this record, we are compelled to conclude, as the district court did, that no reasonable juror could find that LVI’s nondiscriminatory reason for terminating Fried was a pretext for age discrimination and that “but for” Fried’s age, he would not have been terminated.

Interesting side notes. First, the EEOC wrote a brief in support of plaintiff's claim. They don't do that if liability is not consistent with EEOC policy. Second, the district court thought the ageist comment was a "stray remark" without any evidentiary value. The district court reasoned:

Fried's case hinges almost exclusively on the October 19, 2010 conversation between Fried and State, when State purportedly indicated that he would be reassigning Fried's duties and stated: "Burt, you're 71 years of age, how long do you expect to work. . . . [W]hat if you get hit by a bus . . . we have to plan for the future." However,  "[s]tray remarks, even if they occurred as plaintiff claims, are not enough to satisfy the plaintiff's burden of proving pretext. Stray remarks alone do not create an issue of material fact to defeat summary judgment." In this case, the single, isolated mention of Fried's age, the only such mention in the entire record, cannot, standing alone, create an issue of material fact sufficient to defeat summary judgment. This is especially true given that State, by Fried's own admission, qualified his remark by asking "what if you get hit by a bus."

Although the Court of Appeals rules against Fried, it does find that the "hit by a bus" comment was not a stray remark because it "expressly referenced Fried's age in the context of disputing his claimed job duties." Of course, in the end it does not matter because plaintiff was unable to show that he would not have been fired but for the ageist bias.

When is an injunction required in a sexual harassment case?

The Court of Appeals provides some guidance on when district courts should grant injunctive relief against an employer where the jury has returned a sexual harassment verdict on behalf of plaintiffs who were victimized by a sole harasser.

The case is EEOC v. KarenKim, Inc., decided on October 19. A class of female supermarket employees in Oswego, N.Y., endured a hostile work environment by the Store Manager by the name of Manwaring, who hounded his teenage employees with verbal and physical abuse. I will spare you the details, but take my word for it that Manwaring has no business working with or around women, and we'll leave it at that. Anyway, the women complained about this, but store management either did not believe the complaints or did not follow-up as required under Title VII. Eventually, though, Manwaring was fired over the harassment, but even then, a female manager, Conners (who is in a romantic relationship with Manwaring) tried to get employees to lie for him in the litigation. And Manwaring continued to enter the store even after he was fired. Finding that the store was liable for the hostile work environment and did not take reasonable steps to stop and prevent the harassment, the jury awarded the 10 plaintiffs a total of $10,080 in compensatory damages and $1.25 million in punitives.

The appeal concerns the EEOC's request for broad post-verdict injunctive relief against the store even though Manwaring was fired. Among other things, the agency wanted a 10-year order against further sexual harassment and a prohibition against employing or compensating Manwaring or even allowing him to enter the building. The EEOC also wanted the store to give employees photographs of Manwaring and notify them that he could not enter the store. The district court said this request was overbroad and that, after all the store had been through in this case, it would probably do its best to prevent sexual harassment in the future.

The Second Circuit (Katzmann, Wesley and Lynch) reverses and remands. While the district court has broad authority to grant or deny injunctive relief, that discretion is not unlimited. The Court provides the backdrop for its ruling:

Although we recognize that, in the ordinary case, terminating a lone sexual harasser may very well be sufficient to eliminate the “cognizable danger” that a defendant-employer will engage in “recurrent violation[s]” of Title VII, this is not an ordinary case. Notably, in this case, the lone harasser, Manwaring, was not just one supervisory employee among many, but was the Store Manager, with authority over all the defendant-employer’s employees. Moreover, he was and remains in a longstanding romantic relationship with Connors, the owner and highest officer of the defendant-employer. Moreover, the record makes evident that this romantic relationship between Connors and Manwaring was the primary reason why Manwaring’s harassment went unchecked for years, subjecting an entire class of young female KarenKim employees to a sexually hostile working environment. Absent an injunction, nothing prevents Connors from once again hiring Manwaring as an employee. In addition, even if Manwaring is not re-employed at KarenKim, Manwaring’s status as Connors’s fiancé, as well as his relationships with other current KarenKim employees, renders it likely that he will remain a presence at the store. Finally, Connors’s past refusal to adequately respond to multiple credible complaints about Manwaring’s conduct suggests that, so long as Manwaring remains in a romantic relationship with KarenKim’s owner and highest officer, KarenKim will not take adequate remedial measures in response to any future harassment on the part of Manwaring.

So this is a special case, as Manwaring was fired but the risk remains that a hostile work environment will return to the store. That will probably happen once Manwaring crosses the threshold to visit his girlfriend, one of the managers. The district court did have discretion to reject as overbroad some of the EEOC's proposed injunctive relief, i.e., "requiring KarenKim to distribute wallet-sized photographs of Manwaring to its employees, or to hire and pay for an independent monitor to continually review KarenKim’s employment practices and investigate possible instances of sexual harassment." But the district court abused its discretion in "in declining to order (a) that KarenKim is prohibited from directly employing Manwaring in the future, and (b) that KarenKim is prohibited from permitting Manwaring to enter its premises."

In a footnote, the Court of Appeals provides further guidance as to the adequacy of defendant's sexual harassment procedures. This footnote is directed toward the district court in taking up the request for injunctive relief anew. The Second Circuit doesn't like the store's policy directing employees to submit their complaints to Connors, "who has ignored complaints and retaliated against complainants in the past." Also, the store's policy contains technical language that will confuse the teenage employee population by making reference to “discriminatory acts.” And, the policy's requirement that sexual harassment victims must file written complaints within 30 days is too narrow in light of Title VII's 300-day statutory window in order to preserve rights to bring an EEOC charge, and labor law in general does not require complaints in writing.

Although the Second Circuit declines to resolve this issue, in concurrence, Judge Katzmann says that once the jury finds the employer is guilty of sexual harassment, injunctive relief is presumptively appropriate and the employer bears the burden of establishing otherwise.

Court of Appeals strikes down Defense of Marriage Act

The Court of Appeals has ruled that the Defense of Marriage Act is unconstitutional, applying intermediate scrutiny in holding that the law cannot be applied against a lesbian who wanted a spousal deduction for her federal estate taxes after the death of her partner. This case makes it harder for the government to justify laws that discriminate against gays and lesbians.

The case is Windsor v. United States, decided on October 18. This is an important case. Anytime a federal court overturns a federal statute as unconstitutional, it's news. When the court applies heightened review in analyzing discrimination against same-sex couples, it's even bigger news because the court is staking out new ground. And when the judge writing the decision is one of the most conservative jurists on the court, well, that's big news also.

Enacted in 1996, the Defense of Marriage Act (DOMA) defines marriage as one-man/one-woman. This means that same-sex couples do not gain the same financial benefits as male-female marriages. For the plaintiff in this case, that meant that, after her partner died, she was denied the benefit of the spousal deduction for federal estate taxes in the amount of $363,000. The question is whether DOMA violates the Equal Protection Clause. It does, and DOMA is struck down.

Here is how equal protection claims work. Most federal laws do not violate the Equal Protection Clause so long as the legislature had any reasonable basis to pass the law, even if it distinguishes between different classes of people. All laws favor someone or something over something else, so "rational basis" review means that the legislature can do whatever it wants. Except that it cannot discriminate against women. Distinctions on the basis of gender are reviewed under "intermediate scrutiny," requiring the government to show that the male-female distinction is substantially related to an important governmental interest. Many laws fail under intermediate scrutiny, but that standard of review does give the government some leeway in favoring men over women (or vice versa) is there is a strong reason for doing so. Distinctions on the basis of race or national origin are reviewed under "strict scrutiny," which requires the government to justify the racial distinction through a compelling reason. Almost nothing survives strict scrutiny.

What's the standard of review for discrimination against gays and lesbians? The Supreme Court has never taken on that issue. The Second Circuit has, in this case for the first time. It applies intermediate scrutiny. True, as Judge Jacobs notes, "the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged." But that does not matter under heightened judicial review.

The Second Circuit summarizes the multi-part test for determining whether a class of people are entitled to heightened judicial review when they claim discrimination under the Equal Protection Clause: "The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically 'subjected to discrimination'; B) whether the class has a defining characteristic that 'frequently bears [a] relation to ability to perform or contribute to society'; C)
whether the class exhibits 'obvious, immutable, or distinguishing characteristics that define them as a
discrete group'; and D) whether the class is 'a minority or politically powerless.' Immutability and lack of political power are not strictly necessary factors to identify a suspect class.”

By the way, if you are a non-lawyer trying to understand how this all works, this is what it's like to be in law school. Anyway, gays and lesbians satisfy this test and are quasi-suspect classes in the Second Circuit, which means that discrimination against gays and lesbians are easier to challenge in court. The Court of Appeals concludes, "In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority."

The first factor is not a close call: "It is easy to conclude that homosexuals have suffered a history of discrimination. ... Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal." In addition, under the second factor, "homosexuality bears no relation to any ability to perform or contribute to society. "There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual's ability to contribute to society, at least in some respect. But homosexuality is not one of them. The aversion homosexuals experience has nothing to do with aptitude or performance."  Under the third factor, the Court finds that "homosexuality is a sufficiently discernible characteristic to define a discrete minority
class." In other words, "The class affected by Section 3 of DOMA is composed entirely of persons of the same sex who have married each other. Such persons constitute a subset of the larger category of homosexuals; but ... there is nothing amorphous, capricious, or tentative about their sexual orientation." Finally, under the fourth factor, gays and lesbians do not have the political power to insulate themselves from discrimination. "It is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private--which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas."

Now that the Court of Appeals has decided that discrimination against same-sex couples is reviewed under heightened judicial scrutiny, the reasons offered by those defending the spousal-benefits law are not good enough to save the statute. These reasons include (1) the need to maintain a uniform definition of marriage; (2) protecting the public fisc and (3) preserving the traditional definition of marriage. As to the third factor, "tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important
government interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws." The Court also says that it's no justification to say that Congress wanted to encourage responsible procreation. "DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.” Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before."

Judge Straub (a Clinton appointee) dissents, stating that "The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so."

Mucho pretext in SUNY retaliation case

The Court of Appeals reverses summary judgment in a Title VII retaliation case, finding that that the plaintiff engaged in protected activity and also undercut the defendant's reason for extending his employment contract with a trainload of pretext.

The case is Zhou v. State University of New York Institute of Technology, a summary order decided on October 10. This is a good case for plaintiffs, but its precedential value is limited as a summary order. Still, you can cite it in briefs and it also provides insight into how the Court sees retaliation cases.

In a retaliation case, the plaintiff has to complain about discrimination in good faith. If he does so, management cannot punish him for it. Plaintiff told his superiors that a Dr. Langdon had coerced Asian-American faculty members into giving him credit for their scholarly work. In complaining about this, Zhou did not say that Langdon had "discriminated" against Asian teachers. But that magic word is not necessary under Court of Appeals precedent. The Second Circuit (Raggi, Calabresi and Carney) says that "[a]lthough Zhou's deposition testimony and affidavit about these events could have been more detailed, the limited evidence of Zhou's complaints to his supervisor and a human resources executive about coercion directed at Asian faculty members was sufficient to demonstrate protected activity." In other words, contrary to defendants' argument that Zhou's comments were too ambiguous, plaintiff said enough to put his supervisors on notice that Langdon was discriminating against Asian employees.

Can Zhou win the case? Yes, because there is a ton of pretext here. Defendants say that plaintiff's employment contract was not extended because of low student evaluations as well as student complaints about his classroom performance. A Peer Review Committee also made an independent recommendation against extending the contract. This may all be poppycock, the Court says, for a variety reasons: (1) prior to the protected activity, Zhou's supervisor told him that students had given him positive evaluations and that the student complaints against him were "closed issues"; (2) the Peer Review Committee which ruled against plaintiff based its decision in part on Langdon's negative comments about plaintiff's performance; (3) the College Wide Committee, which also ruled against plaintiff, had solicited feedback from Langdon, an unusual procedure in that similar feedback was not solicited for other applicants; (4) the College Wide Committee was given a one-sided presentation about plaintiff's accomplishments; and so on. 

Police beating nets $100,000 in punitive damages

Plaintiffs recover punitive damages when the defendant does something outrageous. They are available to plaintiffs in police misconduct cases. The plaintiff in this case got 'em, and the jury awarded him a lot of money. The Court of Appeals sharply reduces that amount. Along the way, the Second Circuit provides a brief dissertation on the perils of punitive damages.

The case is Payne v. Jones, decided on October 3. This set of facts tells us that world has gone mad and will continue to go mad. Payne is a Vietnam veteran who suffers from war-related post-traumatic stress disorder. His family brought him to the emergency room after he accidentally cut his thumb. Payne was disoriented and combative as he arrived in the ER, prompting officer Jones to arrest Payne under the Mental Hygiene Law, which authorizes the arrest of a person who appears to be mentally ill and might cause serious harm to himself or others. Jones took Payne to St. Elizabeth's Hospital, where things got ugly:

At St. Elizabeth, Payne resisted Jones’s efforts to move him from the ambulance gurney into an individual room in the emergency room’s mental health unit. Jones wrapped Payne in a bear hug and pushed him into the room. As Jones was placing Payne on the bed, he noticed Payne’s Marine Corps tattoos and said “Marines are pussies.” In response, Payne kicked Jones in the groin area. Jones reacted by punching Payne in the face and neck seven to ten times and kneeing him in the back several times. Payne, who was still handcuffed, defended himself by putting his hands up to cover his face and rolling on the bed to turn his back toward Jones. A nurse rushed forward and grabbed Jones, who then stopped punching Payne. The attack lasted 30 seconds or less. A doctor examined Payne and found that his face was bloody and swollen, and that his upper back was reddened. Payne later testified at trial that the beating aggravated his existing back pain and his post traumatic stress disorder. There was no evidence of any other injury.

 The jury ruled that Jones used excessive force against Payne and awarded Payne $60,000 in compensatory damages and $300,000 in punitives. The Court of Appeals (Leval, McLaughlin and Jacobs) knocks down the punitives to $100,000, still a lot of money, but not $300,000. Why the reduction? While Jones' conduct was "reprehensible" in that he gratuitously provoked Payne in insulting the Marine Corps and responding with violence when Payne kicked him, there are some mitigating factors. The Court says:

Jones’s violence was not unprovoked. Payne’s violent threats in the hospital had caused the officers to be summoned to control him. Payne struggled to resist the officers’ efforts to place him in handcuffs and on a gurney. Jones became violent only after Payne kicked him in the groin. While it is true that Payne’s kick in Jones’s groin was in response to Jones’s inappropriate verbal taunt, it was nonetheless a kick in the groin. While Jones’s violence was reprehensible, it was provoked, and that diminishes the degree of reprehensibility. His attack on Payne, furthermore, lasted at most 30 seconds, did not involve use of a weapon, and did not cause any serious physical injuries.

A kick in the groin is a kick in the groin, right? That really is the mother of all acts of violence. And it excuses Jones' reprehensible acts somewhat. The Court also reduces the award because "given the substantial amount of the compensatory award, the punitive award five times greater appears high." Also, Jones's attack on Payne was a misdemeanor offense, not a felony, so that Jones would only get up to a year in jail for this. Courts like to compare punitive damages to comparable criminal sanctions. Here, the potential sanction is not so high as to warrant a $300,000 punitive damages award. Finally, the punitive damages awards in other police brutality cases gave plaintiffs less money for more egregious conduct.

Along the way, the Second Circuit summarizes the objections that commentators and other courts have made to punitive damages. Not only may jurors award punitive damages "in any amount," but "judgment awarding unreasonable amounts as damages impose harmful, burdensome costs on society" as jurors in other cases may award similarly high awards. "Unchecked awards levied against significant industries can cause serious harm to the national economy." Meanwhile, "these burdens on society ... are not justified by the benefits to the plaintiffs. Because punitive damages are awarded over and above full compensatory damages to cover a plaintiff's actual losses, punitive damages have been characterized as 'a windfall to a fully compensated plaintiff.'" Accordingly, judges must be vigilant in ensuring that punitive damages do not get out of hand.