Inmate cannot prove ineffective assistance of counsel on deliberate indifference claim

The Court of Appeals says that an inmate cannot prove that his lawyer was ineffective in connection with his trial on charges of depraved indifference murder. The habeas corpus petition is denied.

The case is Parker v. Ercole, decided on January 23. Parker was charged with both intentional murder and depraved indifference murder. There is a difference between the two, as any law student will tell you. The prosecutor said that Parker shot Johnson in the midst of a street fight over a stolen car. Parker denied the charge. The real question at trial was whether Parker pulled the trigger. The jury found Parker guilty of depraved indifference murder, not intentional murder. Parker's argument is obvious: the only basis to find him guilty would have been intentional murder, not depraved indifference murder. The state appellate courts rejected his argument.

Parker now pursues a habeas action claiming that his lawyer was ineffective in failing to preserve his argument that the evidence was insufficient to support the depraved indifference claim. The Second Circuit (Kearse, Cabranes and McLaughlin) rejects the argument. The district court did say that Parker did not preserve this appellate argument at trial, but it addressed the argument anyway in assessing the ineffective assistance claim that he raised on the habeas petition. But the district court still rejected the petition. The Court of Appeals says that even if there was ineffective assistance, Parker cannot show prejudice (a necessary requirement on habeas petitions like this) because even if his lawyer did do what he was supposed to, that argument would have failed because the evidence was sufficient to support the verdict, and Parker did exhibit depraved indifference to human life in that he was extremely reckless in firing the gun (as opposed to a point blank shooting). That motion would have been futile. Quoting from the Appellate Division, here's why:

The distance between [Parker], who was a novice user of the subject rifle, and the people across the street, was hardly close. All of the witnesses testified that the “shooter” was standing inside the hallway of a residence on the opposite side of the street. The victim, his girlfriend, their male companion and two of [Parker’s] own friends were located across the street from this residence near the victim’s parked car. Another of [Parker’s] friends was also in the immediate vicinity. Moreover, it was dark outside, the street was dimly lit and the weather was described as “a blizzard.” . . . .

While the jury heard testimony from one witness, who acknowledged that he had changed his statement to police a couple of times and who was himself threatened with being charged with murder, that [Parker] allegedly told him that he put the scope [of the rifle] on the victim’s chest that morning, they also heard evidence from the victim’s girlfriend that the victim was pacing back and forth on the street at the time the shot was fired. The jury further heard testimony that, just minutes before the shooting, [Parker] refused to participate in his companions’ decision to steal the victim’s car because he and the victim had been childhood friends. ... [T]here is ample record support for the jury’s decision that [Parker’s] conduct that morning was reckless and depraved rather than intentional.

Supreme Court denies certiorari in Jackler v. Byrne

In July 2011, the Second Circuit held that a police officer could sue his superior officers who retaliated against him for refusing to falsify a police report that implicated a sergeant in police brutality. In distinguishing Garcetti v. Ceballos, 547 U.S. 410 (2006), Jackler v. Byrne is among the few decisions in the Second Circuit that holds that a public employee's workplace speech is protected. On February 27, 2012, the Supreme Court denied certiorari in Jackler.

Jackler received attention because of its dramatic facts and the Second Circuit's holding that this police officer engaged in free speech in refusing to comply with the command that he falsify the police report. Ever since the Supreme Court issued Garcetti, more and more public employee First Amendment retaliation cases have been dismissed on the basis that the speech was pursuant to the employee's official job duties. While Jacker witnessed an act of police misconduct and initially filled out a truthful report pursuant to his official job duties, the Second Circuit held that his refusal to later falsify that report was protected speech because it addressed a matter of public concern (police brutality) and that refusal had a citizen analogue.

What made Jackler potentially certworthy was that the D.C. Court of Appeals in 2011 issued Bowie v. Maddox, which involved a public employee who claimed retaliation after he wanted to submit an affidavit in response to a subordinate's EEOC charge (he refused to sign the affidavit prepared for him by his office, the Office of Inspector General). The D.C. Circuit rejected Bowie's claim at 642 F.3d 1122 (D.C. Cir. 2011), but on Bowie's motion for reargument, the D.C. Circuit addressed Jackler for the first time, at 653 F.3d 45 (D.C. Cir. 2011), and stated that Jackler was wrongly decided and that the Second Circuit had misapplied Garcetti. Hence the cert petitions in both Jackler and Bowie. The law firm of Bergstein & Ullrich, LLP, with assistance from Dupee & Monroe, P.C., filed the op-cert brief in Jackler with the Supreme Court last November.

Some Supreme Court watchers thought the Court might grant certiorari in Jackler/Bowie, since Bowie criticizes Jackler and everyone knows that the Court takes cases to iron inter-Circuit conflicts. It was not to be. Everyone also knows that the Court is selective in hearing cases. The Supreme Court denied certiorari in both cases, and the Jackler decision stands.

Speech about an abusive boss in a public workplace is not protected under the First Amendment

The Court of Appeals has summarily rejected a free speech retaliation claim brought by a public employee who complained about an abusive boss.

The case is Dellatte v. Great Neck Union Free School District, decided on January 20. The Court of Appeals (Cabranes, Pooler and Wesley) says that the plaintiff's speech did not touch upon a matter of public concern.The summary order tells us nothing about plaintiff's speech, but the district court's ruling does. The magistrate judge who dismissed the Complaint says:

Here, Plaintiff’s speech concerned (1) his treatment by his supervisor, Rufus, and (2) the contents of his personnel folder. Regarding his supervisor, Plaintiff alleges that Rufus is “corrupt[]” and an alcoholic, and that he “steals supplies, alters time cards, steals overtime and
otherwise engages in theft of services,” and “becomes very abusive when intoxicated.” Plaintiff further asserts that “Defendant Rufus repeatedly berates plaintiff, talks down to him and falsely criticizes his job performance.” With the above-stated principles in mind, the Court finds that the speech described by Plaintiff in the Complaint represents Plaintiff’s personal grievances regarding his treatment by his supervisor. Such expression may have pertained to Plaintiff’s attempts to redress his personal grievances, but there are no allegations whatsoever to show that Plaintiff engaged in that speech to advance a broader public purpose.

So that's the speech. The hurdle is Garcetti v. Ceballos (2006), a Supreme Court case that says that speech pursuant to your official job duties is not free speech, but work speech for which you can be disciplined. Plaintiff does not even get that far, because the speech does not even address a matter of public concern, though he did speak up about an abusive boss who was on the public payroll.

Plaintiff argued in the district court that he spoke as a private citizen and that his "speech concerned general problems that he perceived and was not limited to instances affecting only him[,]” and that such “speech, about what he perceived to be the improper conduct of his supervisor[,] was not clearly one of his job duties.” The district court said that "courts have frequently stated that '[a] public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run.' Furthermore, '[a] generalized public interest in the fair or proper  treatment of public employees is not enough.' ... Accordingly, where, as here, Plaintiff’s speech is 'calculated to redress personal grievances[,]' Plaintiff cannot state a First Amendment retaliation claim simply by adding conclusory statements regarding his intentions in making that speech."

No due process violations in taxi cab license disputes

The City cannot be sued under the due process clause for denying you a future taxicab license without a hearing. That's the holding in a Second Circuit case that once again reminds us that due process claims cannot survive if the government has discretion to reject certain licenses.

The case is Mordukhaev v. Daus, a summary order decided on January 17.You need a property interest in order to have a due process claim. The property interest is a creation of state law. If your entitlement is concrete and the government has little choice but to grant you the license, then its revocation must satisfy certain procedural safeguards. If the license may be revoked for discretionary reasons under state law, then there is not federal due process claim and your only remedy is probably a state court Article 78 petition.

The cab driver licenses may be denied for a variety of reasons. "The TLC retains significant discretion to deny a license based on subjective criteria. Foremost among these is the requirement that applicants for a license demonstrate 'good moral character.' The TLC also has discretion to determine whether an applicant’s 'physical condition' or 'knowledge of the city' is 'unsatisfactory,' and other provisions provide that the TLC 'may' renew a license or suspend or revoke a license." The plaintiffs used to have these licenses, but they were revoked. Although the City denied plaintiffs new licenses for lack of candor or honesty, poor driving records (among other reasons), these fell under the TLC's discretion. No federal due process claim can follow.

One plaintiff argues that his license was revoked in violation of the due process clause. This claim stands on a different footing than the others, who claimed they were denied a future license. Once you have the license, it cannot be denied on the basis of vague charges of misconduct or through an unfair process. The Court of Appeals (Hall, Chin and Hellerstein [D.J.] sides with the City.

"Here, the pre-deprivation hearing satisfied these basic requirements. It afforded Mordukhaev notice of the charges against him, an explanation of the evidence supporting those charges, and an opportunity for him to present his version of the events. And in any event, Mordukhaev was afforded sufficient post-deprivation process. After the Administrative Law Judge ('ALJ') revoked Mordukhaev’s license, Mordukhaev filed a counseled appeal of that decision to the TLC’s Chief ALJ, raising the very same issues he now advances in this appeal. That appeal was denied, but significantly, Mordukhaev did not pursue his challenge further via an Article 78 proceeding." Under the due process clause, this plaintiff got all the process that the Constitution requires.

Parolees have fewer rights than the rest of us

The Court of Appeals holds that parole officers did not violate the Fourth Amendment in searching a parolee's storage closet in his house without a warrant.

The case is U.S. v. Barner, decided on January 13. What you have to know about this case is that the Supreme Court has granted parole officers additional leeway to search inmates who have been released on parole. Of course, the Fourth Amendment says nothing about parole or the "special needs" exception to the constitutional requirement that the government cannot search without a warrant. But case law puts the gloss on vague constitutional commands, and “[a] State’s operation of a probation system ... presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. As a result, probationers may be subject to a degree of impingement upon privacy that would not be constitutional if applied to the public at large.”

Under this rule, when the parole officers got a tip that Barner had fired a weapon at someone, they came to his place with a parole violation arrest warrant. As they were looking around the house for bad stuff, they came upon a storage area adjacent to his apartment. The storage room was across the hallway, about 10 feet away from the entrance to the apartment. Inside the storage area, they found weapons and ammo and also drug dealing paraphernalia. The district court granted Barner's suppression motion, but the Court of Appeals (Sack, Raggi and Eaton [D.J.]) upholds the search.

The legal standard is that searches like this are legal if they are "rationally and reasonably related to the performance of the parole officer's duty." Here's the reasoning:

Parole Officer Spearman had received information that Barner (1) possessed a gun, and (2) had fired it at the complainant. These allegations, if true, would have constituted criminal parole violations separate from and far more serious than the curfew breach. Once Spearman had this information, it was clearly reasonable for her to investigate the accusations further. Thus, the ensuing search satisfied the reasonable relationship requirement of Huntley because it was performed in direct response to information that Spearman obtained and that she had a duty to investigate further, both to determine if a crime had been committed, and to prevent the commission of further crimes.

Inmate cannot challenge flashlight strip search

As I write this, the Supreme Court is deciding when prison officials can strip search incoming prisoners. But some areas of strip search law are so settled that the Court of Appeals does not have to wait for the Supreme Court to decide that case.

The case is Perez v. New York State Department of Corrections, a summary order decided on January 13. Perez and other plaintiffs were locked up in the Big House. Under Bell v. Wolfish (1979), the Supreme Court said that inmates may be strip searched after having contact visits with outsiders. This is to make sure that family and friends do not slip in contraband while meeting with the inmate. These searches are legal if they are reasonable. The demeaning nature of these searches is outweighed by the need for prison safety.

"Reasonabless" in the prison context means that anything goes so long as prison officials have some kind of rationale for the intrusion. Anyone who handles cases like this will tell you that. In this case, the plaintiffs cannot win. The Court of Appeals (Hall, Chin and Hellerstein [D.J.]) says, "The searches at issue here were not rendered unreasonable under the Fourth Amendment or qualitatively different from the searches at issue in Bell by the de minimis additional intrusions that required the appellants to expose their anal cavities twice during a single search and use of a flashlight to aid in the visual inspection." The plaintiffs also argue that prison officers used the flashlight solely to humiliate them. This will not fly. Under Supreme Court precedent, the officers win the case if their actions are objectively reasonable, even if they were subjectively motivated by bad reasons.

What's the correct pleading standard for employment discrimination cases?

There is some tension between two Supreme Court decisions governing how to plead a federal case. In Swierkiewicz v. Sorema N.A. (2002), the Court said that employment discrimination cases do not have to plead the elements of a prima facie case. In 2009, the Court said in Ashcroft v. Iqbal (2009) that the complaint must allege a claim that is "plausible on its face." This possible conflict surfaces in an age discrimination case rejected by the Court of Appeals.

The case is Hedges v. Town of Madison, a summary order decided on January 13. Must have been a slow day at the Court of Appeals, which handily dismisses Hedges' case because he does not allege enough facts to allege age discrimination. He only says in the complaint that management got rid of this older worker before his pension vested. In 1993, the Supreme Court said allegations like this are not by themselves enough to state a claim. What makes this case interesting is the Second Circuit's (Pooler, Livingston and Leval) observation that "The pleading standard for employment discrimination complaints is somewhat of an open question in our circuit."

The open question is occasioned by Swierkiewicz and Iqbal. Swierkiewicz made it easier for employment discrimination plaintiffs to survive a Rule 12 motion to dismiss. But, as the Court of Appeals notes, Swierkiewicz relies on Conley v. Gibson (1957) which said you can safely plead your case under "notice pleading" standards, a lenient test that the Supreme Court tossed aside in Iqbal. All very interesting for those who handle employment discrimination cases. What's the real standard for these cases? The Second Circuit does not resolve this conflict, finding instead that Hedges cannot plead a case under any standard.

This is what probable cause looks like

False arrest cases are difficult to bring because the police get the benefit of the doubt in proving probable cause, the existence of which kills the case. Making things a little more difficult are the Supreme Court's new pleading standards which prohibit conclusory and speculative allegations. Plausibility is the name of the game these days. I would also say that the courts are not going to be sympathetic to cases like this when the plaintiff is charged with a repulsive crime. The courts may not admit it, but that has to subconsciously factor into the analysis. This is one of those cases.

The case is Virgil v. Town of Gates, a summary order decided on January 6. The plaintiff sues for false arrest and malicious prosecution arising from his arrest for child abuse in connection with his 18 year-old daughter. The case was dismissed under Rule 12, which means the parties did not even commence discovery; it was dismissed on the pleadings. Virgil says his arrest was unconstitutional, but the Court of Appeals says he does not allege a plausible claim, for the following reasons:

1. Plaintiff's daughter had two months earlier identified Virgil (among other people) as her rapist. Witness identification of the perpetrator is usually enough to show probable cause.While the Complaint cites the victim's "fragile mental health as a circumstance raising veracity concerns," the Court of Appeals (Calabresi, Raggi and Lohier) says that "the record shows that these concerns were sufficiently dispelled before arrest and indictment -- by the defendant, the victim, and hospital records -- to support the probable cause determination."

2. But the victim's witness statement is not all that dooms this case. "Virgil confirmed that his daughter's rape claim was not fabricated from whole cloth," as he told the police that a neighbor had raped his daughter and he "insinuated possible untoward sexual contact with his son's friend." The victim then signed a sworn statement implicating her father.

This case shows what modern pleading standards look like. Under the Supreme Court's Iqbal decision, you need to show the case is plausible. Conclusory allegations are not going to cut it. Virgil says in the Complaint that a police defendant told him that the daughter had recanted the rape allegation and said that she was "pushed to disclose" what had happened to her. But this is a conclusory statement, not enough for Virgil to proceed to discovery. Also, while the lawsuit claims that the police did not review hospital records that would have undermined the victim's credibility, the records themselves (presumably submitted in support of the defendants' Rule 12 motion to dismiss) show that the victim suffered bruising consistent with her rape charge. Other claims in the Complaint -- that the police "apparently" withheld DNA evidence and photographs -- are conclusory and speculative.

Lore v. Syracuse, Part II: expert witnesses and immunity

On Monday I wrote about a remarkable decision by the Court of Appeals that conditionally reinstated for trial a discrimination plaintiff's claims only if she agreed to retry her other successful claims. This solution assumed that the jury in the first trial may have given the plaintiff too much money for her successful claims by taking into account bad things that happened to the plaintiff that were not properly before the jury in the first trial. In other words, a massive do-over to make sure the jury gets it right on all claims. There are other holdings in this case, though.

The case is Lore v. City of Syracuse, decided on February 2. My first write-up on this case is here. This is a 78 page ruling with other holdings of interest to lawyers who handle cases like this. The jury awarded plaintiff $250,000 in pain and suffering and reputational damages resulting from the City's retaliation for Lore's EEOC charge. The other holdings are below.

1. Lore used an expert witness, a former police officer and county sheriff who also taught at the state police academy on employment discrimination. The trial court allowed him "to opine that the [Syracuse Police Department's] treatment of Lore reflected retaliation for having filed complaints of discrimination" when defendants prevented her from using certain office space and threatened her with criminal prosecution for photocopying other officers' paychecks in support of her equal-treatment arbitration claim. Trial court expert witness rulings are reviewed for an abuse of discretion. While experts are allowed to testify about the ultimate issue in the case (as this expert did), the Court of Appeals (Kearse, Sack and Lynch) says his testimony was not necessary because the components of a retaliation case "are relatively straightforward." Still, this was harmless error because the jury was able to issue a thoughtful verdict as shown by the complex jury interrogatories. "Contrary to Katsaris's stated opinions, the jury found that Lore had not proven her retaliation claims against three of the four individual defendants under consideration. Further, the jury's answers to the interrogatories reflected a painstakingly focused approach that resulted in no two sets of answers being the same." In other words, the expert testimony did not sway the jury "in any material fashion."

2. After Lore brought an EEOC discrimination charge against the City, its Corporation Counsel, Rick Guy, made untrue and demeaning comments about Lore to the newspaper (including the false claim that she had stolen officers' paychecks). Lore sued Guy under Section 1983 (First Amendment retaliation) and state law (Human Rights Law retaliation). Guy claimed he was entitled to immunity for both claims. He only gets it for the First Amendment claim. When the retaliation happened in 2000, the Second Circuit had not yet held that public officials could be sued for retaliation based on adverse actions unrelated to the plaintiff's employment. In other words, the case law at the time only allowed plaintiffs to sue for work-related retaliation, i.e., a demotion or pay cut, not public defamation or other harmful acts outside the workplace. In 2006, the Supreme Court in a Title VII case (Burlington Northern v. White, 548 U.S. 53) did allow for retaliation claims that did not affect the terms and conditions of the plaintiff's employment. Burlington Northern helps Lore, but it was decided too late. Under qualified immunity, the defendant cannot be sued if the law was not clearly established at the time of the violation.

3. But Lore's state law retaliation claim against Lore from the media outburst survives. New York law has a qualified immunity doctrine, though it is not as well known as Section 1983 qualified immunity. Unlike the Section 1983 immunity, however, New York qualified immunity has a subjective and objective component. Guy was immune from suit under the Section 1983 claim because the unclear case law at the time did not provide an objective basis for him to believe he was violating Lore's rights. But the jury could find that Guy disparaged Lore in bad faith when he spoke to the media. The jury was not asked to decide if Guy disparaged Lore in good faith, and the trial court dismissed this state law claim at trial. But he should not have done so. On Lore's other claims, the jury reached findings that would have entitled Lore to win on this claim against Guy. "The jury, which evidently credited Lore's testimony that she had not taken checks, had not stolen anything, and had only copied pay stubs, was easily entitled to infer that Guy was responsible for the November article's indication that Lore had stolen her fellow officers' paychecks." This claim is reinstated for a new trial.

2d Circuit sustains $250,000 Title VII retaliation verdict (with a catch)

This case must be the most complex Title VII decision of the year. The Court of Appeals hands down a 78-page decision containing a smorgasbord of rulings that favor both sides in this discrimination case from the City of Syracuse.

The case is Lore v. City of Syracuse, decided on February 2. Lore was Public Information Officer for the City Police Department. She was removed from that position in 1999 and assigned elsewhere without a reduction in pay. In 2000, she discovered that she was receiving fewer overtime assignments than male officers. She photocopied their paycheck stubs (the department had them out in the open for all to see) and filed an EEOC charge alleging both discrimination and retaliation because she was assigned less desirable positions because of her discrimination complaints. When Lore used the paycheck photocopies at her internal arbitration hearing on her unfair assignment grievance, the City attorney's office threatened her with criminal prosecution for making these photocopies but said it would not press criminal and administrative charges if she withdrew her discrimination complaints. She refused to withdraw her discrimination charges, and was suspended for using the copy machine for personal use. Then, the City's Corporation Counsel, Rick Guy, told the news media that Lore was a bad employee and that she had "stolen" employee paychecks. The case went to trial, and the jury awarded Lore $100,000 for harm to her reputation and $150,000 for emotional distress as a consequence of the City's retaliation against Lore for asserting her rights under Title VII, i.e., offering to forgo criminal and administrative charges if she dropped her discrimination charge and suspending her for 10 days and seeking a criminal investigation into her photocopying.

So that's the background. Let's start with the City's challenge to the reputational and emotional injury claim, which won Lore $250,000 in damages. The Second Circuit says that the $100,000 in damages were justified because the EEOC has long recognized damages for reputational injury, Lore was shunned by her fellow police officers and civilians had approached her about Guy's allegation that she had stolen officer paychecks. The $150,000 in damages for emotional distress may be a little high considering Lore was not fired and some of her emotional distress predated any of the City's retaliation, but the Second Circuit sustains it because it does not materially deviate from damages in comparable cases. Here are the damages that she endured:

Lore's evidence of her pain, suffering, and emotional distress ... included her own testimony and the testimony of her mother, that Lore had suffered, inter alia, tension headaches, abdominal pain, insomnia, anxiety, and depression. They testified that whereas Lore had been a gregarious and vivacious person before the events of 2000 and 2001, she thereafter suffered from stress, had stomach problems, and became reclusive. Her mother testified that Lore looked like a ghost, "wouldn't talk" to anyone, and "cried and cried and cried." In addition, Lore received medical treatment, the physical side effects of which included vomiting and diarrhea. Her medical records showed, inter alia, that her physician insisted that she remain out of work for a period in June 2001 to receive treatment for her depression.

In addition, "[s]ufficient evidence to support the jury's awards against the City of $100,000 for reputational injury and $150,000 for emotional distress, however, is found in the publicity in which Guy participated, making Lore's suspension public and casting it in a way that allowed the jury to infer that members of the public were left with the false impression that Lore had stolen other officers' paychecks."

Here is what makes this case unique. On the summary judgment motion, the district court dismissed Lore's discrimination claim arising from her removal as Public Information Officer. This discrimination claim predicated Lore's follow-up retaliation claim, which alleged she suffered reprisal from speaking out against the underlying discrimination. The Court of Appeals reinstates the discrimination claim, reasoning that the jury could deem as discriminatory her removal as Department spokeswoman in 1999 because (1) she was replaced by a male and the Mayor said that "a woman should be seen and not heard" and (2) although she did not lose any salary, her removal was an adverse employment action because she lost prestige in working elsewhere in the department. On the adverse action, the Second Circuit's ruling is consistent with its longstanding rule that there is more to life than money in cases like this:

in the PIO position, Lore was assigned to the office of the chief of police, dealt with the media, and was the spokesman for the Department. When she was removed from that position, her duties for several weeks entailed merely doing "odds and ends in the chief's office"; she was then reassigned to Technical Operations.  Shortly thereafter, she was again reassigned, this time to supervise the uniformed patrol units; and in little more than half a year, she herself was required to wear a uniform while serving in a community relations unit in which none of the male sergeants was required to wear a uniform. We conclude that a rational juror could find that, even though Lore's rank and salary were not reduced, a reasonable police officer could easily view the change from the position of public information officer in the office of the chief of police, to that of general factotum in that office and thence to equipment, patrol, and uniformed positions, as materially adverse changes. Accordingly, Lore's HRL claims for gender discrimination based on her removal from the PIO position should not have been summarily dismissed on the ground that she failed to proffer sufficient proof of a materially adverse employment action.

So the discrimination claim is reinstated. So is an unrelated state law retaliation claim against Corporation Counsel Guy, who disparaged Lore in the press after she pressed her discrimination claims. The Court of Appeals notes, however, that the $250,000 damages award that it sustained is a little high, and that the parties did make reference during trial to Lore's underlying discrimination claim arising from her removal as Department spokeswoman (even though the judge kept telling the lawyers to back off this strategy). The Court of Appeals thinks the jury may have given Lore more money than she deserved out of sympathy for the discrimination that she endured in the removal of Public Information Officer position, even though the jury was not asked to rule on that claim because it was dismissed on summary judgment.

What it all means is that if the revived discrimination claims goes to trial by themselves (the Court of Appeals having sustained the verdict in other respects) the next jury may award her damages for those claims, damages that might overlap with the money that the jury has already awarded Lore for the discriminatory and retaliatory maltreatment that she successfully litigated in the first trial. To avoid that result, the Court of Appeals says that the revived discrimination claims are conditionally reinstated for trial if and only if Lore agrees to a retrial on her successful Title VII retaliation claim as well. The City gets a second bite at the apple on claims that it already lost in the first trial, but this approach ensures that Lore is not unjustly enriched in the second trial with damages that the first jury may have already given her out of sympathy for the discrimination claim that was never even properly before the jury in the first instance. Here is how the Court of Appeals (Kearse, Sack and Lynch) puts it:

It is indisputable here that there was considerable discussion at trial as to Lore's complaints of discrimination, in part necessitated by the fact that the acts of retaliation were alleged to have been motivated by Lore's complaints of discrimination. For example, as background for her allegations of retaliation, Lore was allowed to testify to her appointment in 1996 as public information officer for the Department, serving as SPD's liaison with the media, working directly for the chief of police, and having an office of her own in the chief's office. She testified to being removed as PIO and filing grievances thereafter, alleging gender discrimination. But the testimony and arguments went well beyond the mere fact that Lore had filed complaints of discrimination. Lore also testified to the differences between her duties as PIO and her duties after reassignment, for example, being reassigned to the Department's technical operations section, in which her duties were to "overs[ee] telephones, cell phones, pagers, portable radio[s]" and other communication devices. She testified that she was replaced in the PIO position by a male, and said, "To get denied because I am a woman, dead wrong."

Defendants, for their part, argued not only that there was no retaliation, but also that Lore had not been the victim of discrimination. ...

As indicated above, although we do not conclude that the district court abused its discretion in rejecting the City's contention that the jury's award of $250,000 in compensatory damages was excessive, that award for reputational injury and emotional distress caused by the retaliatory acts the jury found to have occurred in September, November, and December of 2000 strikes us as large. And it is entirely possible that the jury, while heeding the court's instructions not to concern itself with the merits of Lore's discrimination claims, was influenced in the direction of generosity by the evidence as to Lore's underlying claims of gender discrimination with respect to her removal from the prestigious PIO position and her transfer to positions involving supervision of cell phones and patrol cars.

Thus, it is not clear to us that a trial limited to Lore's claims of discrimination based on her removal from the PIO position might not result in an award that in part overlaps the generous $250,000 verdict already returned by the jury on her claims of retaliation. Accordingly, to prevent the injustice of a duplicative award, we conclude that if Lore's discrimination claims against Bernardi and the City are to be tried, there should also be a retrial of her retaliation claims against the City and Guy (the latter claims themselves being intertwined as discussed in Part IV above), so that a single jury may consider the circumstances of all of those claims and render a verdict that appropriately compensates Lore with respect to all of the claims it finds proven.

Nonetheless, since we have found no reversible error in the judgment against the City, and since Lore may wish to forgo a trial on her discrimination claims against Bernardi and the City in order to retain the damages, attorneys' fees, and costs awarded in the present judgment, we will make our order for a new trial conditional: We will give Lore the option of either having the present judgment in her favor vacated and having a new trial encompassing both the discrimination claims against Bernardi and the City and the retaliation claims against the City and Guy, or forgoing a trial of those discrimination claims and retaining the benefits of the present judgment.

If Lore elects to proceed to trial, the judgment awarding her damages, attorneys' fees, and costs will be vacated. Her eventual entitlement to those monetary awards will depend on the outcome of the new trial.

This is an extraordinary remedy, one that I have not seen before. Maybe this is why it took the Court of Appeals over a year to issue a ruling. My guess is that Lore will forgo the second trial rather than risk losing the Title VII retaliation verdict on the second go-round. As the district court awarded Lore's counsel $168,000 in attorneys' fees, there is a lot of money on the table, $418,000 in all. The Court of Appeals did issue other rulings in this case, to be blogged upon tomorrow.

Good luck challenging an adverse excessive force verdict on appeal

A recent Second Circuit ruling shows how difficult it is to appeal from an adverse jury verdict, especially in claims alleging that the police used excessive force.

The case is Carvajal v. Mihalek, a summary order issued on December 21. This case went to trial, and the jury ruled against Carvajal, who said that the police violated the Fourth Amendment in shooting at him when they entered an apartment to effect a search warrant. The standard governing excessive force claims says the police can use deadly force if they have probable cause to suspect that the suspect poses a threat of serious harm. With that test in mind, here is how the Court of Appeals ((McLaughlin, Calabresi and Raggi) sees the evidence:

Before entering the apartment where they found the Carvajal brothers, Mihalek and Rizza had learned from official records and a confidential informant with direct knowledge that Joseph Carvajal, who lived in or used the apartment to be searched, had three convictions for violent crimes committed with deadly weapons, and was reputed to carry a firearm at all times. Before the shooting, plaintiff and his brother Joseph failed to admit officers who knocked on the door of the apartment, identified themselves as police, and stated that they were in possession of a search warrant. The officers then used a battering ram to gain entry into the apartment, whereupon the brothers ignored the directive, “Police, get down,” and started to move to an adjoining room. At that point, defendant Mihalek saw that plaintiff was holding a firearm and, believing he intended to shoot, Mihalek fired once at Robert Carvajal, striking him, before plaintiff moved out of Mihalek’s view. Rizza heard the gunshot, saw a white muzzle flash, and heard someone shouting “shots fired,” which led him to believe that the Carvajals had opened fire on the officers. Plaintiff then moved quickly toward Rizza and squared his shoulders. Believing that plaintiff was about to shoot, Rizza fired his weapon and felled Carvajal.

I am sure that Carvajal disagrees with this set of facts, but the Court of Appeals has to view the evidence the way that a jury would. That's why it is so hard to override a jury verdict in a fact-intensive case. On this record, the police officer had the right to fire his gun at plaintiff. Carvajal argues on appeal that the jury cannot credit the police officer's testimony that Carvajal was holding a firearm because that testimony was not corroborated. This argument may sound nice to non-lawyers, but it will never fly in the Court of Appeals. Adverse testimony does not have to be corroborated for a jury to credit that testimony. In any event, the Court of Appeals thinks that testimony in fact might have been corroborated. So this appeal fails.

Plaintiff filed Title VII lawsuit three days too late

If you represent Title VII plaintiffs and the right-to-sue letter arrives in the mail on a Monday, you might want to filed the lawsuit in federal court by Friday. OK, maybe not that quickly, but there is little time to waste. Title VII only gives you 90 days to file that lawsuit, and if you file it on the 91st day, the case will be dismissed and your client will wonder why you did not act any sooner. All this plays out in a recent decision by the Court of Appeals.

The case is Tiberio v. Allergy Asthma Immunology, decided on December 20. The EEOC charge alleged that plaintiff was the victim of disability discrimination. The right-to-sue letter (which closes out the EEOC investigation and allows you to file the lawsuit) was mailed on November 24, 2010. The law presumes that you will get that letter within 3 days, so the Court of Appeals (Cabranes, Miner and Wesley) assumes that plaintiff got it on November 27, 2010. But plaintiff's lawyer got the letter on November 29, 2010. The lawsuit was filed on February 28, 2011. Plaintiff says the filing in federal court was timely because fell within 90 days of her lawyer's receipt of the right-to-sue (not including the weekend immediately preceding the filing date, which doesn't count under Fed. R. Civ. P. 6). So what's the problem?

The problem is that plaintiff was presumed to receive the right-to-sue letter three days after it was mailed, and a few days before her lawyer actually did receive it. If the deadline starts to run when plaintiff got the letter, then the lawsuit is untimely (by only 3 days, but still untimely). It is timely if the operative date is when her lawyer got the letter (a few days later, enough to bring the lawsuit within the 90-day deadline). Since plaintiff and counsel got the letter on different dates, the Court of Appeals has to decide what is the operative date in this case. While notice to the attorney usually qualifies as notice to the client, "the general principle of constructive notice does not affect, much less vitiate, the operative presumptions regarding the receipt of an EEOC right-to-sue latter by the claimant herself." In other words, if the plaintiff got the letter before the lawyer did, then the deadline starts to run when the plaintiff got the letter, not when the lawyer got it. Otherwise, the Second Circuit says, the plaintiff gets an unfair extension of time if her lawyer got the letter after she did.

So here's the rule, set forth by the Court of Appeals for the first time: "we now hold that the 90-day limitations period set forth in [Title VII] begins to run on the date that a right-to-sue letter is first received either by the claimant or by counsel, whichever is earlier."  As the lawsuit was filed 93 days after she got the letter, this new rule kills plaintiff's case..