Due process victory against upstate municipality

Do you know how hard it is to bring a due process case against a municipality? These cases often fail because under "substantive due process," the violation is not outrageous enough for the plaintiff to win. Under procedural due process, if the plaintiff could have brought an Article 78 petition in state court, the federal case might fail. Or it might not.

The case is Manza v. Newhard, a summary order decided on March 20. Manza sued the Village of Warwick, in Orange County, up in my neck of the woods. And a lovely neck of the woods it is! Litigation can cause bad feelings all around, though, which is what happened here. Manza is a landowner. He sued under the Due Process Clause, claiming that the cessation of free water service was sufficiently outrageous to implicate the substantive due process theory of liability. But the Court of Appeals (Winter, Raggi and Rakoff [D.J.]), sees it differently. This was not an outrageous denial of services because (1) the village gave plaintiff 60 days' notice "to afford the property owner an opportunity to pursue legal remedies"; (2) the village attorney (a defendant here) relied on a 1980 village attorney opinion that multiple 19th century deeds did not support free water service for this land and (3) State Supreme Court -- which ruled in Manza's favor on this issue -- said the case was "unique." So, even though Manza won in state court, a case that is "unique" cannot "shock the conscience" on this record.

Manza also sues on a procedural due process violation. The district court dismissed this claim, also, but the Court of Appeals reinstates it. True, Manza brought an Article 78, which is usually enough due process, but it only provided him with a post-deprivation remedy. Manza was also entitled to pre-deprivation process, which the Article 78 did not address. Under the Due Process Clause, the plaintiff has the right to be heard prior to the deprivation. While defendants say that Manza got pre-deprivation process in meeting with village officials before they turned off the water, the complaint and documents attached to it do not compel that finding. In fact, the major's Article 78 affidavit says that the decision to start billing Manza for water was final on December 15, 2008 and "no further administrative remedies were available to Manza in the Village of Warwick." This affidavit helps Manza, and so on the face of the complaint, he has a case.

Why did the district court get it wrong? The Court of Appeals says it was because the parties did not adequately brief the issues. "In vacating the dismissal of Manza’s procedural due process claim, we note that the district court’s brief treatment of the claim is understandable in light of the parties’ sparse briefing of the question below. Defendants’ memorandum in support of dismissal addressed procedural due process in less than a page; Manza’s opposition did not discuss the claim at all. On remand, the parties may develop this claim, and the district court may address it further as warranted."

Disability and national origin discrimination claims fail

Although Congress a few years ago amended the Americans with Disabilities Act to broaden the definition of "disability," that law is not retroactive, and cases governed by the old ADA are still percolating through the system. Those cases often fail because the plaintiff does not have a "disability" under the old law. This is one of those cases.

The case is Joseph v. North Shore University Hospital, a summary order decided on April 3. Under the old ADA, walking was a major life activity. If Joseph was substantially limited in her ability to walk, she would be protected under the statute. Her case fails. The Court of Appeals (Livingston, Lynch and Droney) says:

On de novo review of the record, we identify evidence that Joseph suffered from a bunion and pain on her toenail following surgery which prevented her from wearing stockings with closed shoes. While these symptoms caused Joseph some difficulty with walking, see 29 C.F.R. § 1630.2(i) (1991), Joseph did not adduce sufficient evidence to support a finding that she was “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i) (1991), superseded by 29 C.F.R. § 1630.2(j) (2011). Indeed, Joseph testified that she was not limited in performing her work duties by her foot condition.

 Joseph, who is Haitian, also brought a national origin discrimination claim. Her evidence for this was a disciplinary notice reprimanding her for speaking in her native French in violation of the hospital's policy to speak English in the office unless the employee is speaking with a patient who spoke another language. The Court rejects this case: "Joseph adduced no evidence to support her claim that other employees were permitted to speak Spanish in the workplace without being disciplined and thus no evidence that she was treated differently by the Hospital because of her Haitian origin."

You may ask whether it violates the civil rights laws to require employees to speak English in the workplace. It does not. The Second Circuit cites a 29 year-old case that says so, Soberal-Perez v. Heckler, 717 F.2d 36, 42 (2d Cir. 1983) (observing that a policy having a preference for English over all other languages is not evidence of discriminatory intent).

Boorish comments do not a sexual harassment case make

What does it take to make out a sexual harassment case? These cases rely on the totality of the evidence, making it difficult to predict when the court will grant or deny summary judgment. This case tells us when the case is too weak for a jury. The retaliation case doesn't cut it, either.

The case is Christofaro v. Lake Shore Central School District, a summary order decided on April 2. Plaintiff says that, over a seven-year period, her former supervisor, Redman:

(1) occasionally commented on Cristofaro’s physical appearance; (2) participated in a bet with three other male employees as to when Redman would be able to engage Cristofaro in sexually explicit conversation; (3) once made a non-sexual sarcastic or derogatory remark to Cristofaro in front of a colleague; (4) beckoned to Cristofaro in the halls by yelling “hey,” curling his finger in her direction, and engaging her in conversation unrelated to her work once a month for three-and-a-half years; (5) threw a piece of paper at Cristofaro in a faculty meeting; (6) lied about Cristofaro to a colleague; and (7) briefly made contact with the side of her body while standing next to her.

The supervisor may have been boorish, but he did not create a hostile work environment. The Court of Appeals (Sack, Raggi and Droney) notes that the supervisor did not touch plaintiff or ask for sexual favors. "The record indicates only limited, infrequent, and at worst, mildly offensive conduct falling well short of the severity and frequency required to raise a triable issue of fact as to the existence of an objectively hostile work environment." Other than one comment about plaintiff's physical appearance and the "sex talk" bet, the offensive conduct was not based on sex. While plaintiffs can make out a hostile work environment case, in part, through gender-neutral comments, "there must be a circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory." That's the rule in Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002).

Plaintiff also claims management retaliated against her for filing a discrimination charge with the State Division of Human Rights. Plaintiff was denied a volunteer position at the school district as a dance-team advisor. In order to make out a retaliation claim, you need an "adverse action." An adverse action is something that management did to you that would dissuade a reasonable employee from complaining about discrimination. I guess the Court of Appeals does not think it's a big deal to be a volunteer dance instructor. "No reasonable employee would have been deterred from making or supporting a charge of discrimination based on Redman’s refusal to give the employee an unpaid and effectively volunteer position as co-advisor to a student dance team. Other than being denied the opportunity to volunteer as the team advisor, none of the terms and conditions of Cristofaro’s employment were altered by Redman’s decision."

Inmate wheelchair claim fails under qualified immunity

An inmate sued state prison officials under the Eighth Amendment, arguing that they were deliberately indifferent to his serious medical needs because they failed "to provide [him] a new wheelchair[,] thus forcing him to use an unsafe wheelchair while he was in custody of the New York State Department of Correctional Services." The district court denied the state's motion for summary judgment. The Court of Appeals reverses, dismissing the lawsuit.

The case is Hall v. State of New York, a summary order decided on March 27. Jail is where the bad boys go. Qualified immunity is where potentially good cases die. Qualified immunity is the doctrine that says that state defendants get the benefit of the doubt in close cases, such as where the law was not clearly established at the time of the alleged violation. In this case, the inmate, Hall,  had a defective wheelchair. The Court of Appeals says that Nurse Stevens "took appropriate steps to address Hall’s concerns about his wheelchair. Upon receiving a complaint from Hall, Stevens sent the wheelchair to the Physical Therapy Department for evaluation and repair. The Physical Therapy Department then tightened the armrests on the wheelchair and informed Stevens that the wheelchair was safe and functional. When Hall continued to complain about the condition of his wheelchair, Stevens responded that he would look into 'getting [the] wheelchair repaired.'” Similar evidence relates to the other defendant, Weinstock, leading the Second Circuit (Katzmann, Raggi and Rakoff [D.J.]) to conclude that it was objectively reasonable for these defendants to believe that they were not deliberately indifferent to Hall's serious medical needs.

I'm gonna tell you something. I have represented inmates, and this case (as summarized by the Court of Appeals) does not seem that strong to me. So how did this case survive summary judgment at the district court level? Here is how the district court set forth the evidence:

Plaintiff Peter Hall suffers from polymyositis, a chronic muscle disease that causes pain in the limbs and limits his ability to walk for periods of time. Plaintiff entered the custody of the New York State Department of Correctional Services in 2003, and, at that time, his condition was so severe that he was wheelchair-dependent because he was unable to stand or walk. In September 2004, while transferring from his state-issued wheelchair into a shower chair, the right armrest broke, causing Plaintiff to fall in the shower. Plaintiff sustained serious injuries, including a fracture of his ninth and tenth thoracic vertebrae, and a pinched cervical/facial nerve.

. . .

Plaintiff alleges that he spoke with Stevens on at least four occasion after he filed his grievance but before he received a final disposition, expressing dissatisfaction with the repairs and informing Stevens of his remaining fear. Stevens admits that, though he had the authority to order Plaintiff's wheelchair repaired, he exercised it only when responding to Plaintiff's formal grievance. Thus, as the Magistrate Judge found, a reasonable jury could conclude that "[Stevens]' failure to send [Plaintiff]'s wheelchair for further repairs or replacement constituted a deliberate indifference."

Looking at the evidence this way, the case looks a little stronger. We don't always know the full story in reading a summary order by the Second Circuit. But that's the legal process, and that's how summary judgment and qualified immunity works. At best, the Court of Appeals thought this was a close case. You can have a decent case, but government employees are immune from suit unless the case is a strong one. If the case falls within a gray area, you can survive dismissal in the district court, but the case will not make it past the Court of Appeals. 

Stray remarks that stereotype Asians not enough to save discrimination claim

How relevant are biased comments in assessing an employment discrimination claim? Very relevant if a decisionmaker made them, or if someone with influence over the decision made them. If someone else made the comments, not so much.

The case is Chao v. Mount Sinai Hospital, a summary order decided on April 17. The Court of Appeals sets the tone for the decision as follows: "This action arises from a lengthy internal investigation conducted by Mount Sinai School of Medicine resulting in a finding that Chao, formerly an Assistant Professor of Medicine at Mount Sinai, had committed research misconduct." Dr. Chao argued that his termination was based on his race and national origin.

In these cases, the plaintiff has to show, at a minimum, that management's reason for the adverse decision was a pretext, or lie. The Court of Appeals (Jacobs, Katzmann and Keenan [D.J.]), says, "Chao did not meet his burden of proffering sufficient evidence to support a rational inference that Mount Sinai’s legitimate, nondiscriminatory reason for Chao’s termination -- the 'rigorously-investigated charge and finding that Chao committed research misconduct and violated professional or ethical standards.'"

Plaintiff tried to get around this by highlighting stereotypical comments made by someone at Mount Sinai. According to the district court,

Dr. George Atweh, a non-party who was formerly the chief of Chao's division at MSSM, made several questionable remarks in an interview on March 13, 2009 during the investigation process. He attributed Chao's alleged authoritarianism to his national origin. ("I think that in part it's cultural, in China you never question authority . . ."); ("I counseled him on that, that that's no approach to run a laboratory, certainly not in this country, maybe in China, but not here . . ."); ("there are clearly issues with his ability to run a laboratory. Conflicts with people; authoritarian issues, like we mentioned . . . [A]s I said, I think some of these are cultural . . .").

The district court did not like these statements, but they are not relevant to Chao's claim. "While these remarks demonstrate a speculative and naïve acceptance of stereotypes based on national origin, they do not suggest that discriminatory animus occasioned Chao's termination because Atweh was not even on the Investigation Committee, let alone involved in the decision to terminate Chao; in fact,  the statements were made after Atweh was no longer employed by MSSM. Moreover, Chao has characterized Atweh as a friendly witness and the Investigation Committee agreed to interview Atweh at Chao's behest." The trial court further stated, "taken as a whole, these comments fail to show that Chao's termination occurred as a result of a racial or national origin bias. Rather, Chao's behavior was independently objectionable, and no facts suggest that the unprofessional and unfortunate remarks by Chao's colleagues during the investigation had an effect on Dean Charney's termination decision. The comments do not evidence the kind of animosity that has in other cases overcome summary judgment motions."

The Court of Appeals agrees. "The allegedly discriminatory comments made by certain defendants regarding Chao’s Chinese culture and background were 'stray remarks buried within . . . thousands of pages of testimony and reports,' and were made by persons with a 'significant distance . . . in terms of both time and institutional hierarchy' from the ultimate decision-makers."

Pro se inmate wins excessive force appeal

How often does the government concede on appeal that the trial court improperly granted summary judgment? Never happens? It happened.

The case is Porter v. Goord, a summary order decided on March 15. Porter was an inmate who sued prison guards for excessive force. This case was filed in the Western District of New York, which dismissed the case. That cannot happen, of course, unless the Attorney General's office filed a motion for summary judgment. I guess the state's appellate lawyer got a fresh look at the case. While the AG's office is supposed to defend the district court's ruling, it did not do so here even though inmate Porter brought the appeal pro se and presumably did not write a stellar brief.

Must have been a real bummer for the Attorney General's office to make concessions like this. It will give you credibility with the Second Circuit, but it means that that office will lose the appeal and its trial team has more one case to try. The Court of Appeals (Jacobs, Chin and Carney) tells the story:

 As to the excessive-force claim, the defendants concede that the district court erred in granting summary judgment for New York State Department of Correctional Services (“DOCS”) Officers Paul Weed, Peter Mastrantonio, and Joel Armstrong. Porter has disputed the defendants’ account of the incident, specifically denying that he provoked Officer Mastrantonio by kicking him and that he violently resisted the subsequent attempts to subdue him. Moreover, the record does not indicate whether the evidence adduced by Porter disputing the officers’ account is “contradict[ed]” by the surveillance video that supposedly captured (a portion of) the incident.

The defendants also concede that the district court erred in granting summary judgment for Sergeant Gary Morse on Porter’s claim that Morse failed to intervene to prevent the other officers from using excessive force. “A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers,” ... and “is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know ... that excessive force is being used.”  ... The record reflects a genuine issue of material fact as to whether Morse failed to protect Porter from an alleged assault by officers that he knew or had reason to know was occurring.

Attorney advertising rules violate the Constitution

If lawyers want to advertise, there are special rules governing whether they can tell the public they are "specialists." The Court of Appeals has struck down some of those rules as unconstitutional.

The case is Hayes v. State of New York Attorney Grievance Committee, decided on March 5. The Second Circuit really smacks around the attorney licensing board in this case. Hayes is a board-certified lawyer who specializes in civil litigation, having been so designated by the National Board of Trial Advocacy, an American Bar Association accredited organization. His advertisements, including billboards and letterhead, mention this certification. The grievance committee went after him for violating its rules. The Second Circuit says these some of these rules are too vague and therefore violate the First Amendment.

The Court of Appeals first says that it's legal for the requirement that advertisements say that the certifying organization, such as NBTA, are not affiliated with any government authority.This rule ensures that potential clients are not fooled into thinking that the government actually certifies lawyers.

But two other requirements violate the First Amendment. The state requires that the lawyer tell potential clients that certification is not a requirement for practicing law. As there is no proof that this rule is really necessary to avoid that risk, it fails under the Constitution as prohibiting a speculative harm. The Court says, "It is difficult to imagine that any significant portion of the public observing the thousands of lawyers practicing in New York without certification believe that all of them are acting unlawfully."

The other requirement that violates the First Amendment is one that compels the lawyer to state in his advertisement that certification "does not necessarily indicate greater competence than other attorneys experienced in this field of law. The Court says:

Although the assertion might be technically accurate, depending on how "competence" and "experienced in the field" are understood, the assertion has a capacity to create misconceptions at least as likely and as serious as that sought to be avoided by the first assertion. Some members of the public, reading this third assertion, might easily think that a certified attorney has no greater qualifications than other attorneys with some (unspecified) degree of experience in the designated area of practice. In fact, the qualifications of an attorney certified as a civil trial specialist by the NBTA include having been lead counsel in at least 5 trials and having "actively participated" in at least 100 contested matters involving the taking of testimony, passing an extensive examination, participating in at least 45 hours of CLE, and devoting at least 30 percent of the lawyer's practice to the specialized field. These qualifications may reasonably be considered by the certifying body to provide some assurance of "competence" greater than that of lawyers meeting only the criterion  of having some experience in the field, and a contrary assertion has a clear potential to mislead. Such a requirement does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record.

Finally, the Second Circuit rejects another requirement, one that says that the disclaimers must be prominently displayed in the advertisement. As applied to Hayes, this is a vague rule, which runs afoul of the First Amendment.

Hayes advertised on billboards that set forth the disclaimer in lettering six inches high, one inch larger than the lettering required by the federal government for health warnings on similar cigarette advertising. It is not our role to assess whether such a disclaimer does or does not comply with the New York rule, and this case does not require us to opine on whether a clear and specific rule that required even larger lettering would comport with the Constitution. We find ourselves unable to conclude, however, that a lawyer of average intelligence could anticipate that lettering of that dimension could be construed as not "prominently made."

Making things worse, former principal counsel for the Grievance Committee said that his successor would probably apply the "prominence" rule differently than he would. This kinda proves how difficult it is to apply this rule, doncha think? If the rule is that difficult to apply, then it violates the First Amendment. The state is going to have to come up with some objective standards for the "prominence" rule.

Attorney General's office totally mishandles habeas case

This is an embarassing decision for the New York Attorney General's office, which blew a deadline and waived its right to a sure-fire challenge to an inmate's otherwise successful habeas corpus petition.

The case is Stevens v. Miller, decided on April 10. After he was convicted of robbery, Stevens was convicted as a persistent felony offender. He brought a habeas petition in federal court, arguing that the New York persistent felony offender law ran afoul of the Supreme Court's Apprendi and Blakely decisions and was therefore unconstitutional. The magistrate judge denied the petition, but Stevens' lawyer asked the court to stay the deadline to challenge that adverse ruling until the Second Circuit decided a different case that similarly argued that the felony offender law was unconstitutional. The Circuit eventually struck down the felony offender law in Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010). At that point, the Attorney General's office advised the district court that the Besser case might be heard en banc by the Second Circuit and asked that the district court hold off on deciding Stevens until the Circuit issued a definitive decision on the constitutionality of the felony offender law.

Are you with me so far? What happened next was that an en banc Second Circuit overruled itself in Besser, saving the felony offender law and completely undercutting Stevens' constitutional challenge to his sentence. Here is where the Attorney General's office blew it. First, it did not tell the district court in Stevens that the Second Circuit had decided to re-hear the Besser case en banc. Second, at around this time, citing Besser, the district court granted Stevens' habeas petition. For some reason, the district court did not send a copy of the ruling to the Attorney General's office, which did not independently check the docket sheets (as required by the rules) to see if a decision had come down. The AG's office therefore never filed a notice of appeal. Little more than a year later, citing the en banc ruling in Besser, the AG's office filed a Rule 60(b)(6) motion to vacate the judgment granting Stevens' habeas petition. The district court said no and the Second Circuit (Wesley, Parker and McLaughlin) also says no.

If you are a Rule 60(b) junkie, then read the decision for a good summary of what that rule means and why portions of it are mutually exclusive. For the rest of us, Rule 60(b) lets you re-open a case under special circumstances. None apply here. The Second Circuit says the AG's Rule 60(b) motion is an end-run around the one-year deadline to reopen the judgment. The Circuit decision is written with some measure of disgust for the AG's negligence. It refers to one of the AG's arguments as "silly" and repeatedly lambastes it for its neglect. Let's face it: someone was asleep at the switch. (The district court ruling is even more disparaging on the AG's negligence). The state could have won its challenge to Stevens' habeas petition, but instead Stevens wins even though the Court of Appeals has rejected the legal predicate for that petition in the en banc ruling in Besser. Of interest to me is that the court reminds us that lawyers are required to check the electronic docket sheets to make sure nothing is happening in the case. Do people really do this? Or do they simply wait for the ECF notification? I think you know the answer. But it's not a bad idea to check the docket sheets on those slow-moving cases. A decision might come down behind your back.

Disabilities-rights judgment dismissed for lack of standing

After a five-week trial, Disability Advocates -- a non-profit organization -- succeeded in challenging the State of New York's treatment of certain disabled persons, persuading the district court that, “[i]n carrying out their administration of New York’s mental health service system, [d]efendants have denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs.” The district court entered injunctive relief against the state, requiring that New York provide apartments and small group homes for thousands of adult disabled persons who were being "warehoused" in large adult homes. A glorious day for Disability Advocates.

The case is Disability Advocates, Inc. v. Cuomo, decided on April 6. The Second Circuit, after deliberating for more than a year, and with assistance from a ton of amicus briefs, says that Disability Advocates had no standing to bring this suit. This means the judgment is thrown out, as if the lawsuit never happened. A terrible day for Disability Advocates, and its constituency.

Organizations can sue on behalf of other people under the "associational standing" doctrine. The Supreme Court says that an association has standing to bring suit on behalf of its members when: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit."

Disability Advocates is not a membership organization; it is an advocacy group, a "Protection and Advocacy Group" under federal law, to be exact. Under a contract, this organization exercises some of the authority of New York's protection and advocacy system for the disabled. But they have no standing to bring this action. The Second Circuit (Cabranes, Parker and Korman [D.J.]) reasons:

[T]here is scant evidence in the record that the individuals with mental illness whom DAI purports to represent have the power to elect its directors, make budget decisions, or influence DAI’s activities or litigation strategies. For instance, the record does not contain the contract between [the Commission of Quality Care and Advocacy for Persons with Disabilities] and DAI. Nor does it contain agendas, minutes, or other evidence regarding the quarterly meetings between DAI and [the Commission on Quality Care]; names and descriptions of the members of the Advisory Council; or ways that individuals with mental illness convey information, requests, or inquiries to the Advisory Council. Finally, the record does not establish that DAI ever notified its “constituents” or any of their legal guardians that it was filing this suit purportedly on their behalf. Accordingly, DAI has failed to satisfy its burden of establishing the elements of its purported associational standing.

Now, the United States did intervene in this case. It did so after the liability phase of the case. But since the federal court had no jurisdiction over the case in light of Disability Advocates' lack of standing, the U.S. cannot intervene in the case, because the case should not have been filed by Disability Advocates. The Second Circuit notes that the U.S. can initiate its own lawsuit and resubmit the same evidence that Disability Advocates introduced at trial. Seems unduly duplicative, but there is no other way, other than disabled individuals themselves bringing suit. The Court says, "We are not unsympathetic to the concern that our disposition will delay the resolution of this controversy and impose substantial burdens and transaction costs on the parties, their counsel, and the courts. Should that situation arise, we are confident that the experienced and able district judge, as a consequence of his familiarity with prior proceedings, can devise ways to lessen those burdens and facilitate an appropriate, efficient resolution."

"The physical reality of childbirth" undercuts constitutional challenge

A Suffolk County employee sued the County on the basis that its maternity leave policy violates the Equal Protection Clause of the U.S. Constitution. The Court of Appeals affirms summary judgment, rejecting the argument.

The case is Wahl v. County of Suffolk, a summary order decided on February 24. Under the policy, both parents can take off from work after the baby is born. But women -- and not men -- can use accrued sick days before being taken off payroll. Plaintiff argued that this policy is not substantially related to the legitimate goal of protecting women in the workplace because "a woman can take the leave even if she is perfectly capable of working." This argument fails, the Court of Appeals (Katzmann, Carney and Restani [D.J.]) says, because:

it overlooks the physical reality of childbirth, which entails a number of medical procedures and recovery time, and which requires repeated visits to specialized doctors and time to address and investigate a variety of possible complications.

Wahl also argues that management gave him a lousy assignment after he spoke out against the constitutionality of the sick leave policy. Only two days after he spoke up, Wahl was given rotating tours instead of his usual night duty. Two days certainly supports a connection between the speech and the adverse action. Except that in this case it does not, because management had long been concerned about Wahl's misuse of sick time, and the County was able to prove that it would have transferred Wahl even without his protected speech. The causal connection between Wahl's speech and the lousy shifts is broken. The case is dismissed.

Tattoo you

What say you, tattoo? It can say a lot. In this case, a guy was convicted of murder after the prosecution introduced evidence that the defendant had a tattoo that said "Enforcer."

The case is Vega v. Walsh, decided on February 17. This case has two noteworthy rulings, both governed by the watered-down habeas corpus standard of review that federal courts apply under the mid-1990's law that allows state-court criminal convictions to stand so long as the state courts do not unreasonably apply the U.S. Constitution.

The victim was found lying in a park in Queens, shot to death. Vega was convicted of murder and weapons possession. Among other things, in establishing that he had solicited a murder-for-hire, the prosecution presented evidence that Vega's tattoo on his abdomen said "Enforcer." Trial court evidentiary rulings are usually no basis to grant habeas relief, and the Second Circuit (Kearse, Leval and Chin) says that the "evidence at issue here was at least arguable relevant, and even assuming there was error, this evidence was not so extremely unfair that its admission violated fundamental conceptions of justice."

Vega's other argument is that it was unfair for the trial court to allow the medical examiner to testify about the contents of the autopsy report, which itself was not admitted in evidence. The medical witness was not the one who prepared the report, which corroborated the prosecution's theory that Vega was guilty. Vega argues that, following the trial in his case, the Supreme Court made it harder for the prosecution to get away with this, that autopsy reports are testimonial and testimony from a medical witness who did not prepare the report violates the Confrontation Clause. Even if Vega is technically correct, his argument fails. Habeas corpus law allows the state courts to interpret the Constitution as they see fit, even if a federal court would have done so differently, so long as the state court interpretation is not clearly unreasonable. The state court appellate ruling that affirmed Vega's conviction predated the Supreme Court cases invoked by Vega, and they were consistent with existing Supreme Court authority interpreting the Confrontation Clause. His habeas petition is denied.

In Title VII case, winning the collateral estoppel battle, losing the war

Collateral estoppel is a legal principle that is well known to federal litigators who like to avoid the unhappy results obtained in state administrative proceedings. There are ways around bad administrative rulings when you want to bring a civil rights case. This case shows us one way how.

The case is Broich v. Incorporated Village of Southampton, a summary order decided on February 15. If you handle cases like this, then what happened here will look familiar. Broich was disciplined under Civil Service Law section 75, which entitles him to an impartial hearing. He claimed at the hearing that he was being disciplined in retaliation for making certain statements to the District Attorney's office and the State Commission on Investigation. Under the state whistleblower law, this defense will not work unless the hearing officer finds that Broich was disciplined solely because of his whistleblowing. The hearing officer rejected the whistleblower defense, finding that Broich was disciplined for work-related misconduct.

Undeterred, Broich filed a Title VII action in federal court, claiming that he was retaliated against for filing an EEOC/discrimination charge. The district court threw out the retaliation claim on collateral estoppel grounds, reasoning that "the findings of the hearing officer at Broich's disciplinary hearing conclusively established that the disciplinary charges were brought and acted upon by defendants for non-retaliatory reasons." This might make sense to the uninitiated, but it's wrong, the Court of Appeals (Straub, Livingston and Cabranes) says, for a couple of reasons.

First, Broich did not argue at the disciplinary hearing that the charges were brought in retaliation for his EEOC charge. Second, the state whistleblower law that he did invoke at the hearing requires a finding that the charges were solely brought in retaliation for Broich's speech to the DA and state authorities. Under Title VII retaliation law, however, you don't have to show the adverse action was solely because of the plaintiff's protected activity; you only have to show the protected activity (such as filing an EEOC charge) was merely a substantial reason for the adverse action, not the sole reason. "Thus, granting collateral estoppel effect to those hearing officer findings that were necessary to support his ultimate determination would not preclude Broich from making out the required elements of a Section 1981/Title VII retaliation claim."

In a footnote, the Second Circuit says something else unique to these cases. Even if the Village had sufficient justification to file charges against Broich, that does not mean he has no case. Under DeCintio v. Westchester County, 821 F.2d 111 (2d Cir. 1987), "in the event ... that appellees were motivated by retaliatory animus in instituting the Section 75 proceeding, Title VII would be violated even though there were objectively valid grounds for the proceeding and the resulting discharge."

Broich loses the retaliation appeal, though. All the interesting stuff that I outlined above does not revive his claim. In the end, the Court of Appeals says that "Broich has failed to adduce sufficient evidence to create a genuine dispute of material fact as to whether [the Village] was motivated in substantial part by retaliatory animus in bringing disciplinary charges against him." On collateral estoppel, Broich won the battle. On the Title VII retaliation claim, he lost the war.