Circuit sustains $315k excessive force verdict

Paul Weather went to a high school basketball game in Mount Vernon. When he tried to leave the building at halftime, he came upon police officers near the door. Weather told the officers that he was a retired detective but had left his identification inside. The officers called over Sgt. Marcucilli. According to Weather, the Sgt. beat the crap out of him, fracturing his clavicle, injuring his rotator cuff and aggravating a prior injury to the other rotator cuff. The jury awarded Weather $315,000 in damages, including $25,000 in punitives. The Court of Appeals affirms the verdict.

The case is Weather v. City of Mount Vernon, a summary order decided on April 11. Once the jury weighs in on the evidence, it is hard to convince the Court of Appeals to override the verdict unless the Court made some legal error at trial. Mount Vernon is unable to do so. The Second Circuit (Walker, Straub and Pooler) says: "The majority of appellants’ arguments rest on the contention that Weather’s constitutional rights were not violated by Marcucilli’s use of force. But such contention is largely foreclosed by the jury’s verdict, which found that Weather 'proved by a preponderance of the evidence that the defendant, Sergeant Marcucilli, intentionally or recklessly applied excessive force on Mr. Weather on January 12, 2007 in a manner that was objectively unreasonable under the circumstances.'”

Here are the relevant factors in determining whether someone has a claim for excessive force under the Fourth Amendment: courts consider the severity of the crime at issue, whether the suspect posed a threat to anyone and whether he was actively resisting arrest. The officers can use force in certain cases, i.e., if the suspect was charged with a serious crime or was resisting arrest. Not here. There are some interesting holdings in this case, though the Court of Appeals easily rejects all of defendants' arguments.

First, defendants argued that the Sergeant thought that plaintiff was impersonating a police officer, but the jury rejected that defense at trial. Even if Weather had committed disorderly conduct, that is not a crime in New York, but a non-criminal violation. Excessive force is harder to get away with when the suspect is engaging in disorderly conduct. If the Court of Appeals has reached this holding previously, I am not aware of it, and the decision cites no authority on this point.

Second, defendants said that Weather was actively resisting arrest because "he was not calm during his testimony." But, the Second Circuit says, "the demeanor of a witness and what it means about that witness's version of events could not be a more quintessential question for the jury." On top of this, the jury was able to find that Weather was not trying to resist an arrest. As far as the Circuit is concerned, this was a gratuitous use of force by the sergeant. "No reasonable officer would believe that 'twisting Mr. Weather's arm behind his back and pushing or shoving him into the brick wall outside the school' was a lawful use of force this circumstance."

Sex offender in civil confinement cannot sue over seized CD's and magazines

The Second Circuit for the first time outlines the legal standards governing the rights of sex offenders in civil confinement whose mail and other personal media items are reviewed to ensure they do not contain inappropriate material.

The case is Ahlers v. Rabinowitz, decided on April 6. After plaintiff was released from prison, he was sent to a civil confinement. The government can do this because plaintiff was a sex offender. While in civil confinement, officials there seized plaintiff's DVD's and CD's and also reviewed his mail, holding onto some of it. He sues under the Fourth Amendment, alleging that these seizures were unreasonable.

The Court of Appeals says that plaintiff cannot state a claim. The Second Circuit (Jacobs, Wesley and Cabranes) notes that "To determine the substantive rights of a person involuntarily committed to a state institution, the interests of the individual are balanced against the interests of the state.We have not previously undertaken to perform that analysis with regard to the Fourth Amendment right of civilly committed persons to be free from unreasonable searches and seizures."

Writing on a fresh slate, the Court of Appeals has several holdings. First, while Ahlers does not claim entitlement to possess sexually explicit media, he alleges instead that that none of the discs is sexually explicit. "But the Defendants are not bound to accept his characterizations or assurances. It was therefore not unreasonable to seize the discs to look for prohibited material. The fact that the Center allowed Ahlers to acquire the discs did not diminish its interest in ensuring that they were appropriate." Institutional authorities are thus allowed to seize electronic media from inmates to see if they contain inappropriate material.

Plaintiff also sues on a procedural due process violation, arguing that they took his stuff without notice. This claim is rejected. While "pretrial detainees are not entitled to notice before a search of their cells,"Ahlers argues that, "at the time of the seizure, the Center staff did not tell him what they were screening for and gave him no receipt. The state’s interest in quick and efficient searches militates against requiring that a detailed explanation or a written receipt be given at the time of seizure." Afterwards, plaintiff got a receipt and was told of the reasons for the screening; that satisfies due process.

Other claims are also rejected. Plaintiff's claim that the facility had no clear procedures for reviewing his materials doesn't fly; in this context, the facility has to act fast. The Constitution does not require written procedures like this. While plaintiff says that they held onto his stuff too long, the 350 CD's and DVD's have to be reviewed in "real-time," and time takes time, as they say.

Finally, the facility reviewed plaintiff's mail, including his normal magazines. The legal standard governing this claim is "reasonableness," similar to the standard at the jailhouse. Some of the everyday magazines had children in bathing suits. For other magazines, it was not clear why they were taken. No matter. The state defendants get qualified immunity because, the Second Circuit says, they acted reasonably at the time in seizing the mail and magazines under the circumstances.

Moral turpitude crime wipes out discrimination case

The plaintiff is a City of Syracuse Police Officer who lost his job when he was convicted of Endangering the Welfare of a Child because he rented a hotel room for a 15 year-old girl who ran away from home. He sued the City under the Equal Protection Clause and the civil rights laws, arguing that white officers had engaged in similar or worse treatment than minority officers, including him. He loses the case.

The case is Brown v. City of Syracuse, decided on March 13. Brown was suspended without pay after he plead guilty to with Endangering. The question is whether he suffered an adverse employment action after June 2000, when the City suspended him. Without an adverse action, you have no case for employment discrimination. Although Brown was suspended without pay, there is no adverse action after June 2000 because under the state Public Officers Law, a public employee loses his job when he is convicted of an "oath of office" offense. Since Endangering is an "oath of office" offense because it reveals a lack of moral integrity, Brown lost his job even before the City suspended him without pay. The Court of Appeals (Jacobs, Hall and Scheindlin [D.J.]), says there is no adverse employment action since "the July 2000 suspension without pay and the arbitration proceedings leading to his termination all occurred after Brown had lost his job by operation of law."

Brown also argues that his pre-termination suspension was an adverse employment action under the civil rights laws, including Title VII. Under Second Circuit precedent, "administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action ... where the employer merely enforces its preexisting disciplinary policies in a reasonable manner." While a suspension with pay may, in some circumstances, constitute an adverse action "if the employer takes actions beyond an employee's normal exposure to disciplinary policies," that is not the case here. The City acted reasonably in suspending Brown because the Captain had given Brown a direct order to cease contact with the girl before Brown got her a hotel room when he knew she was a runaway, leaving her alone in the hotel room. Brown misled his superior officers in denying that he rented her the room or knew of her whereabouts. As the City acted pursuant to its regulations that provide for suspending officers "when it reasonably appears that such action is in the best interests of the department," under the circumstances, it did not apply its regulations unreasonably, and Brown therefore did not suffer an adverse action.

Finally, Brown raises an Equal Protection argument because "he should not have been investigated in the first place and the [police department] should have become involved in his investigation and worked with the State Police and District Attorney to achieve a more favorable outcome for him." The general rule is that "civil damages are not available by reason of a police officer's refusal to turn a preferentially blind eye toward another's serious infraction." However, a vigorous investigation motivated by the plaintiff's speech, race or gender that went beyond how the authorities treat members of the general public could predicate an Equal Protection case. Not here. The investigation into Brown's misconduct was nondiscriminatory, and authorities acted reasonably in investigating his questionable behavior. Moreover, the Second Circuit concludes, "to recognize a constitutional violation here based on a failure to extend a 'professional courtesy' would create bizarre incentives encouraging officers to meddle with criminal investigations of a fellow officer's misconduct in order to avoid being subject to liability. This would stand the Equal Protection Clause on its head."

Government can withhold Bush-era waterboarding documents and photograph

The Court of Appeals has turned back an effort by the ACLU to get its hands on government documents relating to waterboarding in the course of the "war on terror." The Second Circuit finds that the Freedom of Information Act does not authorize this disclosure.

The case is American Civil Liberties Union v. Department of Justice, decided on May 21. Who wouldn't want these records? Waterboarding was among the most controversial practices of the Bush administration, which denied that this "enhanced interrogation technique" amounted to torture. In particular, the ACLU wants unredacted government memoranda concerning waterboarding and a photograph of Abu Zubaydah, a "high value" detainee who was in CIA custody abroad.

The Freedom of Information Act provides for the release of certain government records, but there are exemptions, including one for national security. The government invoked that exemption, arguing that they "related to 'intelligence methods,' 'intelligence activities,' and CIA 'functions.'" The plaintiffs responded that these records were subject to disclosure because President Obama announced in January 2009 that waterboarding is torture and therefore illegal.

The Court of Appeals (Wesley, Carney and Cederbaum [D.J.]) provides the backdrop: courts afford the government substantial deference in cases like this that involve national security. In keeping these records under wraps, the government's affidavits must "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. ... Ultimately, an agency may invoke a FOIA exemption if its justification 'appears logical or plausible.'”

Some of the records in this case were properly withheld because the president said so under an Executive Order in 1995. The Second Circuit looks at these materials in private and finds that they concern intelligence activity rather than a "source of authority." The Court says, "We give substantial weight to the Government’s
declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity." In particular,

The Government’s declarations describe in persuasive detail how revealing the redacted information would cause exceptionally grave harm to national security by (1) “damaging on-going activities and relationships with foreign intelligence liaison partners, which are of utmost importance to the CIA’s overseas intelligence operations,” (2) “alerting our adversaries of the existence of [the] intelligence method, which would give them the opportunity to alter their conduct to adapt to this new information and make future intelligence operations more dangerous and less effective”; and (3) “increasing the risks for all individuals involved in those operations, including CIA officers and assets.”

Other records in this case -- those relating to waterboarding -- are also kept under lock and key. The plaintiffs make the interesting argument that these records cannot be exempt under the "intelligence method" exception because "the President has declared the practice of waterboarding illegal. ... Plaintiffs argue that the CIA may decline to disclose only records relating to those intelligence methods that fall within the CIA’s charter. Plaintiffs argue that because an illegal activity cannot be said to 'fall within the Agency’s mandate to conduct foreign intelligence,' waterboarding cannot be an 'intelligence method' within the meaning of the CIA’s withholding authorities."

The Second Circuit rejects this argument as lacking any basis in FOIA law. The Court is also "wary of the practical difficulties that would likely arise were the category of protectable intelligence methods circumscribed as Plaintiffs propose." In particular, under the plaintiffs' theory, "an information officer and then the court would potentially be forced to engage in a complex inquiry to determine whether the government has sufficiently demonstrated the legality of the method to justify withholding."

So what about the torture photograph? Plaintiffs do not get that one, either. The Second Circuit says that "a photograph depicting a person in CIA custody discloses far more information than the person’s identity. We agree with the district court that the image at issue here conveys an 'aspect of information that is important to intelligence gathering,' and that this information necessarily 'relates to' an 'intelligence source or method.' The Government’s justification for withholding the photograph is thus both 'logical and plausible.'"

Town Hall prayer violates Establishment Clause

For years, a Town Board in upstate New York started most of its board meetings with Christian prayer. Is this legal? This issue is not as easy as you think. The Court of Appeals in this case says it violates the Establishment Clause. But the Second Circuit employes a totality-of-the-circumstances test, and results in your town may differ.

The case is Galloway v. Town of Greece, decided on May 17. The Town Board started off its meetings this way from 1999 through 2010. The Town said that anyone was invited to give religious prayers, but the public did not really know this, as the Town did not publicize its "policy." Instead, the Town Board selected candidates for prayer by contacting houses of worship in the Town. The problem is that religious congregations in town were primarily Christian. Plaintiffs -- two residents who objected to the Christian prayer --testified that they were unaware of any non-Christian houses of worship in the Town of nearly 100,000 residents.

The Second Circuit (Calabresi, Wesley and Lynch) notes that the Supreme Court in Marsh v. Chambers (1983) said that Congress could start its legislative sessions with prayer. Judge Calabresi walks us through other Establishment Clause cases that only confirm how complicated this area of Constitutional law has been over the years. But I am not here to write a law-review article. The Court of Appeals distills the following rules from the cases:

First, a given legislative prayer practice, viewed in its entirety, cannot advance a single religious sect. Second, the government may use pro-religious prayers at the start of its legislative sessions. Otherwise, the government runs the risk of appearing to be hostile toward religion. Whether legislative prayer violates the Establishment Clause requires a totality-of-the-circumstances test.

The Town loses this case for a number of reasons. First, as the town is only drawing from religious institutions within its borders, "the process for selecting prayer-givers virtually ensured a Christian viewpoint."  Judge Calabresi writes, "The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief."

Second, while the town says that any religious prayer is welcome at its meetings, the public is unaware of this. "Absent any effort on the part of the town to explain the nature of its prayer program to attendees, the rare handful of cases, over the course of a decade, in which individuals from other faiths delivered the invocation cannot overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion."

Finally, the Court of Appeals deems it relevant that most prayer-givers "appeared to speak on behalf of the town and its residents, rather than on behalf of themselves." They would request that the audience participate in the prayer. In addition, the town supervisor would sometimes thank them for being "our chaplain of the month." The inference here is that someone in the audience would think that the prayer-givers are speaking on behalf the Town Board.

Title VII retaliation cases: they ain't easy

We sometimes forget how difficult it is for plaintiffs to win failure to promote claims under Title VII. This case reminds us that a good case is not enough to win. The plaintiff needs a great case.

The case is Turner v. NYU Hospitals Center, a summary order decided on April 2. Turner says he was let go in a downsizing because he is white. The hospital says he was let go for two reasons: downsizing required the elimination of all personnel budgets by two percent, and management promoted someone else, Robert Stephen, to fill a position because he was more qualified than Turner, who wanted that position.

Let's talk about the promotion denial. Management was not happy with Turner's job performance, and when they let him go he was marked "ineligible for rehire." The Court of Appeals (Raggi, Droney and Matsumoto [D.J.]) says:

While Turner plainly disagrees with these relative assessments, to defeat summary judgment on the ground of pretext or that retaliation was a substantial reason for his termination, Turner had to adduce evidence that his qualifications were “so superior” to Stephen’s that “no reasonable person, in the exercise of impartial judgment, could have chosen [Stephen] over the plaintiff for the job in question.”

See that? It is not enough for plaintiff in a failure to promote case to show that he was more qualified. Giving deference to managerial judgment, the Court of Appeals says the plaintiff must prove he was "so superior" to the other guy that it was unreasonable for an impartial decisionmaker to pass over the plaintiff. That's the rule in Byrne v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001).

Plaintiff did find a supervisor, Morelos, who had kind things to say about him. Plaintiff says this supervisor's testimony helps his case. Not so, the Court of Appeals says. It just means that reasonable people can disagree as to Turner's qualifications for the position. That does not prove pretext:

Former Building Services Department Director Joey Morelos’s subjective belief that Turner was meeting expectations is consistent with Turner’s 2003 performance evaluation, but Morelos did not cite any objective reasons why DeGazon and Pineda, Turner’s directs upervisors with the greatest familiarity with the quality of his work, were wrong in determining that Turner had not improved enough to meet expectations in 2004. At most, Morelos’s deposition testimony shows that reasonable people could disagree as to Turner’s qualifications relative to Stephen’s, which is insufficient to establish a triable question of pretext. 

The issue of what evidence the plaintiff needs to show that he was denied a promotion for discriminatory reasons is unsettled at the Supreme Court. In Ash v. Tyson Foods, 546 U.S. 454 (2006), the Supreme Court touched upon what evidence the plaintiff needs to show pretext when he is denied a promotion. It rejected flippant language to the effect that the plaintiff needs to be substantially more qualified than the selectee, but it did not settle upon a standard. Here’s what the Court said in Ash:

the Court of Appeals erred in articulating the standard for determining whether the asserted nondiscriminatory reasons for Tyson's hiring decisions were pretextual. Petitioners had introduced evidence that their qualifications were superior to those of the two successful applicants. (Part of the employer's defense was that the plant with the openings had performance problems and petitioners already worked there in a supervisory capacity.) The Court of Appeals, in finding petitioners' evidence insufficient, cited one of its earlier precedents and stated: "Pretext can be established through comparing qualifications only when 'the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.'"

Under this Court's decisions, qualifications evidence may suffice, at least in some circumstances, to show pretext. See Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989) (indicating a plaintiff "might seek to demonstrate that respondent's claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position").

...

The visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications. Federal courts, including the Court of Appeals for the Eleventh Circuit in a decision it cited here, have articulated various other standards, [i.e.,] Cooper v. Southern Co., 390 F. 3d 695, 732 (11th Cir. 2004) (“disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question"; Raad v. Fairbanks North Star Borough School Dist., 323 F. 3d 1185, 1194 (9th Cir. 2003) (holding that qualifications evidence standing alone may establish pretext where the plaintiff's qualifications are " 'clearly superior' " to those of the selected job applicant); Aka v. Washington Hospital Center, 156 F. 3d 1284, 1294 (D.C. Cir. 1998) (en banc) (concluding the factfinder may infer pretext if "a reasonable employer would have found the plaintiff to be significantly better qualified for the job"), and in this case the Court of Appeals qualified its statement by suggesting that superior qualifications may be probative of pretext when combined with other evidence[.] This is not the occasion to define more precisely what standard should govern pretext claims based on superior qualifications. Today's decision, furthermore, should not be read to hold that petitioners' evidence necessarily showed pretext. The District Court concluded otherwise. It suffices to say here that some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results. 

Participation clause allows employer to fire HR manager for investigating in-house sexual harassment complaint

The Second Circuit has held that Title VII's participation clause does not prevent an employer from retaliating against a human resources manager who vigorously investigated an internal sexual harassment complaint. The participation clause does not kick in until the sexual harassment victim files a formal charge with the EEOC.

The case is Townsend v. Benjamin Enterprises, decided on May 9. I wrote about a different holding in Townsend here. This time around, I am writing about the second plaintiff, Grey-Allen, who investigated Townsend's sexual harassment complaint. Grey-Allen was fired by the harasser's husband before she completed the investigation, and sued under Title VII's anti-retaliation provision, the "participation clause." I represented Grey-Allen in the district court and on appeal.

The district court granted summary judgment. The Court of Appeals (Livingston, Lohier and Koeltl [D.J.]), affirms. The participation clause reads as follows:

Section 704(a) of Title VII contains both an opposition clause and a participation clause, making it unlawful for an employer to retaliate against an individual “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 4 2000e-3(a).

What is "an investigation ... under this subchapter?" With support from the EEOC, Grey-Allen argued that "under this subchapter" means any sexual harassment investigation, particularly one conducted pursuant to the court-created requirement that management promptly investigate any in-house sexual harassment complaint. For the most part, sexual harassment complaints cannot go the EEOC as a formal discrimination charge unless the plaintiff complains about the hostile work environment pursuant to corporate procedure. The Court of Appeals disagrees, interpreting "an investigation ... under this subchapter" to mean formal charges with the EEOC.

An “investigation ... under this subchapter” thus plainly refers to an investigation that “occur[s] in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating in an employer’s internal, in-house investigation, conducted apart from a formal charge with the EEOC.”

 ...

While the Faragher/Ellerth affirmative defense creates an incentive for employers to conduct internal investigations in order to show that they have met the first prong of this defense, it does not impose an obligation on employees to participate in such investigations as a necessary prerequisite to bringing a discrimination claim under Title VII. Faragher and Ellerth do not provide a basis for bringing internal investigations not associated with a formal EEOC charge “under this subchapter” within the language of the participation clause.

This was an issue of first impression for the Second Circuit, but it follows the reasoning of the other Circuit courts that have taken up this issue. A few years ago, the Supreme Court took up this precise issue, but resolved the Title VII case under the opposition clause, not the participation clause.

Judge Lohier's concurrence agrees with the majority's reasoning, but he points out that "[t]here was strong evidence that it fired Grey-Allen for no reason other than that she conducted an effective internal investigation of a sexual harassment claim against a corporate vice-president." He adds that "[a]s a policy matter, however, the distinction between investigations in which the government is involved and internal investigations strikes me as antiquated and arbitrary. The facts of this case starkly illustrate the arbitrariness. Had Grey-Allen conducted her investigation under the auspices of a government agency such as the EEOC, her actions would have been protected under the participation clause. But because she conducted the same internal investigation without EEOC involvement, her actions are not protected." For this reason, Judge Lohier says, "Congress should act to clarify Title VII if it desires to prohibit private employers from retaliating against employees merely because they participate in internal investigations of discrimination complaints prior to any involvement by the EEOC."

Second Circuit adopts proxy liability in sexual harassment cases

If you handle sexual harassment cases, then words like Faragher and Ellerth are very much a part of your vocabulary. They stand for the proposition that an employer is not liable for supervisory harassment if it took effective remedial measures after the employee complained about the hostile work environment. There are a few exceptions to Faragher/Ellerth. The Supreme Court held a few years ago the employer cannot invoke this affirmative defense if the plaintiff suffered retaliation for complaining about the harassment, or if harasser demanded sex in return for favorable treatment at work. The Second Circuit has now recognized another exception to the Faragher affirmative defense: proxy, or alter ego, liability.

The case is Townsend v. Benjamin Enterprises, decided on May 9. I represented Townsend at trial and on appeal. Townsend was harassed by her supervisor, who was also vice president of the company and had decision-making authority on corporate matters. The supervisor, then, was not a mere supervisor, but a proxy for the company, or its alter ego. The jury ruled that Townsend was sexually harassed and that defendant was not entitled to the Faragher affirmative defense because the harasser was a proxy for the company. As the parties fought like cats and dogs at trial over whether the company undertook effective remedial measures after Townsend complained about the harassment, the proxy verdict was significant.

Whether proxy liability exists under Title VII was an issue of first impression in the Second Circuit, but a few other Circuits had already recognized this theory of employer liability, based on a reading of the Supreme Court's decision in Faragher. Proxy liability is now the law in the Second Circuit.

Who is a proxy? The Second Circuit (Livingston, Lohier and Koeltl [D.J.]) takes its cue from the other Circuits: "Courts of Appeals have considered supervisors to be of sufficiently high rank to qualify as an employer’s proxy or alter ego when the supervisor is a 'president, owner, proprietor, partner, corporate officer,' or otherwise highly-positioned in the management hierarchy." Under this test, Townsend's harasser was an alter ego of the company:

Here, Hugh Benjamin is the only corporate Vice President of BEI, operating as second-in-command, with a position immediately below Michelle Benjamin in the corporate hierarchy. He is also a corporate shareholder with a financial stake in BEI. All of BEI’s corporate shares are held by Hugh Benjamin, Michelle Benjamin, and their two children. Given these facts, the jury reasonably could have concluded that Hugh Benjamin was sufficiently high within the corporate hierarchy to qualify as BEI’s alter ego. ... Moreover, Hugh Benjamin exercised a significant degree of control over corporate affairs, which is consistent with alter ego liability. He collaborated with Michelle Benjamin on corporate decisions including hiring, and the supervisors and managers in the field reported directly to him.

A few other interesting issues arise in this case. The scope of Title VII's "participation clause" -- another issue of first impression in the Second Circuit -- takes up half the opinion, and that's a blog post for another day. The Court of Appeals also finds that while the jury instruction was defective in failing to properly apprise the jury of the correct standard for proxy liability, that was harmless error since the harasser was a proxy as a matter of law, and no reasonable jury could find otherwise. The Second Circuit also finds that the corporate president (and the harasser's husband) was automatically liable under state law even though she did not harass Townsend. Here is how the trial court correctly charged the jury under state law:

If you determine that Hugh Benjamin was employed in a position sufficiently elevated within the corporate hierarchy as to be viewed as the employer’s alter ego, then you must also find Defendant Benjamin Enterprises strictly liable for hostile work environment sexual harassment under both federal and state law, and Defendant Michelle Benjamin strictly liable for hostile work environment sexual harassment under New York State law.

Employer's failure to investigate HWE may violate Title VII

On Monday, I wrote about a same-sex harassment case where the Court of Appeals held that a female supervisor may have created a hostile work environment in touching a female subordinate's breasts three times over a six-month period. Today I write about the second part of the decision, holding that a jury may find that management failed to properly investigate the plaintiff's complaint in violation of Title VII.

The case is Redd v. New York State Division of Parole, decided on May 4. Any human resources professional knows that you have to to promptly investigate any sexual harassment complaint. You're staring liability in the face if you don't. The Supreme Court made this clear in 1998, issuing two opinions on the same day that hold that (1) the employer is automatically liable for supervisory harassment but (2) it can assert an affirmative defense and win the case if it takes effective remedial action. This is the Faragher/Ellerth rule. In other words, stop what you're doing and investigate the complaint. Or send the sexual harassment victim a check for damages and cut out the jury trial all together.

Every case has a twist. There's a few in this case. First, it is not clear if the State has an affirmative defense because it looks like Redd was unfairly suspended and given an undesirable assignment after she complained about Washington. This possible retaliation knocks out the affirmative defense, but that issue was not briefed in the district court, so the Court of Appeals leaves it alone.

The other twist is the nature of Redd's sexual harassment complaint. After Redd's supervisor touched her sexually, Redd did not complain in writing because she wanted to avoid criticism from her co-workers. But she did complain verbally to the Human Resources Director, Jose Burgos, who testified that he "did not recall whether Redd had complained about Washington 'directly' to his office." But it was enough, Burgos said, to complain to him directly. He admitted in deposition that Redd did complain to him verbally about Washington's sexual harassment, and that "if you made a complaint to me or my office, ... it would be investigated." Since Department of Parole argued in this case that it did not take any corrective action and that Redd did not sufficiently complain about the harassment, the question is whether she properly complained to require an investigation. She did, the Court of Appeals says. The reasoning is interesting.

Redd brought this case pro se, and she took the depositions herself. Her questions to Burgos in deposition are not evidence, of course, but they did incorporate facts relevant to her case, and the Court of Appeals figures that Redd would testify similarly at trial. The Circuit concludes,

In his deposition, [Burgos] stated "[his] recollection ... that [Redd] complained that Ms. Washington bumped" Redd and that Redd "viewed that as sexual harassment." Redd, conducting Burgos's deposition pro se, immediately disputed Burgos's characterization of Redd's description to him of Washington's actions, stating, "I didn't put in the complaint that she bumped me. I put in the complaint that she felt my breast on three different occasions."

While Redd's colloquy is not evidence, her deposition testimony that she had complained about Washington to Burgos is evidence, and we think it well within the leeway that is normally to be afforded a pro se litigant for the court to infer that such a face-to-face assertion of detail as to precisely what she had reported would be included in her testimony at trial. In any event, as a jury would not be required to believe Burgos's testimony that Redd, in complaining to him, had described Washington's physical contact as simply a "bump[ing]," a court considering whether the Division has established its defense as a matter of law would be required to disregard that characterization.

Circuit vacates summary judgment in same-sex harassment case

The Court of Appeals has reinstated a same-sex workplace harassment claim, breathing life into the Supreme Court's Oncale precedent in holding that a jury could find that a supervisor created a hostile work environment by touching the breasts of her female subordinate on three occasions over the course of a five-month period.

The case is Redd v. New York State Division of Parole, decided on May 4. The district court granted summary judgment on the following evidence: while employed by the Division of Parole, Ferdie Redd was the object of supervisor Sarah Washington's sexual advances. In April 2005, Washington "brushed up against Redd's breasts." This so startled Redd that she spilled water all over some workplace documents. In June 2005, while Redd was walking down the hallway with a co-worker, Washington "came up and she touched my breasts and rubbed up against it again in front of this parole officer." In September 2005, after approaching Redd's workspace for no apparent reason, Washington again "reached over and touched and brushed up against Redd's breasts."

The Second Circuit (Kearse, Raggi and Walker) rejects the district court's analysis, i.e., that a jury cannot find that Washington did this to Redd because of Redd's gender, and that these were "relatively minor, incidental physical contact[s]." And these contacts "may have been purely accidental" and were not "physically threatening or humiliating." Under the totality of circumstances, and viewing any ambiguous evidence in the light most favorable to Redd, the Second Circuit notes, "Redd inferred that Washington's touching, feeling, and rubbing up against Redd's breasts were 'homosexual advances.' We see no principled reason why a jury, considering the evidence of repeated touching of such gender-specific body parts, would not be permitted to draw the same inference." The evidence also suggests that, in fact, Washington's advances were physically threatening, as "Washington ... repeatedly made physical contact with -- and repeatedly felt -- intimate parts of Redd's body." As Washington harassed Redd in front of another parole officer, the Court also finds that a jury could deem this contact humiliating. And it was not incidental: "as to each instance, a jury could find that Washington, without any apparent legitimate need had contrived to be in close proximity to Redd, and had touched her breasts." Nor was it accidental: Washington went out of her way to do this, and she never apologized or indicated that it was an accident.

OK, so that harassment was not episodic, accidental or incidental. Was it it because of gender? The Supreme Court in Oncale Sundowner Offshore Services, 523 U.S. 75 (1998), said that Title VII prohibits same-sex harassment. But the Court of Appeals does not hear too many cases like this. Most sexual harassment case are male-on-female, and the gender component is obvious. Oncale says that "the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Also, "in same-sex (as in all) harassment cases, the inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. ... Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive."

Like many Supreme Court cases, Oncale provides vague guidance. So the Court looks to the Seventh Circuit, which says that "casual contact ... in the absence of aggravating circumstances such as continued contact after an objection" does not violate Title VII. "But when the physical contact surpasses what (if it were consensual) might be expected between friendly coworkers ... it becomes increasingly difficult to write the conduct off as a pedestrian annoyance." The Second Circuit likes this language, and it fuses that with the old standby about requiring juries to resolve disputed issues about state of mind or intent. Under these standards, the jury could find that Washington did this to Redd because of her gender. The Court says:

although the district court found it material that "Redd d[id] not attribute any suggestive or sexual remarks to Washington," a factfinder, instructed to use "[c]ommon sense" would be entitled to draw inferences as to intent and motivation from conduct as well as from words. If the claim were that a supervisor--of either gender--stated to a female employee "I want to feel your breasts," or stated to a male employee "I want to feel your penis," a jury could easily infer that that stated desire was because of the employee's sex. A district court could not properly rule as a matter of law that that gender-specific harassment was not because of the employee's sex. It is no more permissible to rule as a matter of law that the supervisor's harassment was not because of the employee's sex when the supervisor repeatedly--albeit silently--touched, rubbed up against, and felt those gender-specific, intimate parts of the employee's body. Given the permissible inference that Washington's touchings were not accidental, we cannot affirm a dismissal that, in effect, holds that such repeated sexually abusive, gender-specific actions are less probative than words.

No "cat's paw" for DOCS officer

The Supreme Court said last year that under the "cat's paw" theory, a Title VII plaintiff can win his case if a biased supervisor wanted him fired and played a role in his termination. The plaintiff in this case invokes the cat's paw in pursuing a racial discrimination case. The Court of Appeals will not let him.

The case is Adamczyk v. New York State Dept. of Correctional Services, a summary order decided on April 5. This is a summary order and therefore less precedential than a published opinion, but this is one of the few cases interpreting Staub v. Proctor Hospital, the cat's paw case. Plaintiff, a white corrections officer, was fired after management accused him of dropping the ball as "evening watch commander" when an inmate was beaten up by other prison guards. His case went to arbitration, and after a full hearing, the arbitrator ruled against plaintiff, who was then fired.

Ten years ago, the Second Circuit in Collins v. Transit Authority, 305 F.3d 113 (2d Cir. 2002), put the kabosh on Title VII lawsuits where the plaintiff lost his disciplinary hearing. The thinking is that if a fair hearing before an arbitrator or hearing officer finds the plaintiff guilty of misconduct, the plaintiff needs a damned good reason for the federal courts to override the hearing officer in a separate lawsuit. It can be done, but it's not easy. Federal courts believe these hearings are generally fair. Plaintiff tries to get around this by arguing that the hearing officer relied on testimony from a racist superior officer, Kearney, who gave black officers a break but went after plaintiff, who is white. Plaintiff is trying to use the "cat's paw" theory to get around Collins. This is a creative effort, but the Court of Appeals (Sack, Livingston and Lynch) is not buying it.

We conclude that, notwithstanding Staub [v. Proctor Hospital, 131 S.Ct. 1186 (2011)], Appellant’s case fails because he has not adduced evidence sufficient to allow a reasonable juror to conclude that Kearney’s testimony was motivated by discriminatory animus “intended . . . to cause an adverse employment action.” Appellant has produced evidence that, if believed, would allow a jury to conclude that Kearney uttered two statements suggesting he may harbor, or may at some point have harbored, some sense of racial grievance. However, one of these statements was made near the beginning of Kearney’s tenure at Wende, which began in 1999, and neither statement was made to Appellant or in the context of the decisionmaking process that resulted in Appellant’s termination. The probative value of such statements is thus limited, even drawing all inferences in Appellant’s favor."

In addition, while plaintiff submitted affidavits purporting to show that Kearney more favorably treated black employees, that evidence does not get him the cat's paw, either. The Second Circuit also rejects plaintiff's effort:

Missing from these affidavits, however, are facts detailing a single incident in which Kearney treated an African-American employee favorably and treated a similarly-situated employee of another race unfavorably. Therefore, Appellant’s evidence fails to support the conclusion that Kearney’s favorable treatment of the employees in question was motivated by race, as opposed to any of the myriad other motivations that prompt supervisors to treat employees leniently.

Furthermore, there is no evidence that Kearney instigated the disciplinary inquiry, and even if a reasonable factfinder could conclude that his testimony against Adamczyk was false, he had ample non-racial motivation to testify as he did, in order to insulate himself from blame for the inmate’s injuries and to shift responsibility onto his subordinates, including Appellant. Thus, Appellant has failed to produce evidence that would permit a reasonable juror to find that Kearney harbored racial animus and that such animus was a motivating factor in an alleged decision on his part to give false testimony.