Paranoia will get you an IME

You don't see a lot of right to privacy cases under the Constitution. When you think of privacy rights, abortion and other family planning cases come to mind. But the Constitution also protects a right to medical privacy. That claim is raised here.

The case is Davidson v. City of Bridgeport, a summary order decided on June 25. Davidson sued the City on a variety of claims, including equal protection, procedural due process, Fourth Amendment, Eighth Amendment as well as state law claims against the psychiatrist. The Second Circuit disposes of those claims quickly.

The primary claim, though, arises from management's decision to send Davidson to an independent medical examination, or an IME, because it believed he was mentally unfit for duty. As Davidson cannot show that the City's decision was arbitrary and outrageous, he cannot sustain his substantive due process claim. He evidently exhibited symptoms of paranoia at a disciplinary hearing, according to the Court of Appeals (Raggi, Chin and Leval). So, even though the personnel rules do not specifically authorize IME's, it doesn't matter. The decision to send Davidson to an IME was not arbitrary, and that kills the privacy claim.

The privacy claim also fails even though the City shared his medical information with the Police Department. Sharing this information was reasonable. "Davidson's privacy interest in personal medical information is diminished to the extent that physical and mental fitness are essential to his work as an armed law enforcement officer." Moreover, this intrusion was relatively limited, as the independent psychiatrist only presented the Department with his findings (and did not share plaintiff's private medical records) and management sent him to the IME after reasonably believing that Davidson might be mentally unfit for duty.

Circuit rejects ADA service dog claim

You are going to see more service animals over the next few years, as returning war veterans with post-traumatic stress and other disabilities use them to navigate civilian life. The Americans with Disabilities Act protects the use of service animals, but the contours of these claims are still unfolding. (The U.S. Attorney's office in NYC is pursuing claims like this, including one in which I played a minor role). Taking a stab at it, the Court of Appeals has rejected an ADA claim that a restaurant mistreated a "manifestly disabled" woman whose service animal was an unwanted guest at this establishment.

The case is Krist v. Kolombos Restaurants, Inc., decided on July 24. Krist was a regular at the Coopertown Diner, which she described as a Cheers-like place "where everyone knew your name." In 1998, she continued frequenting the restaurant, except that instead of crutches and other assistance that no one at the restaurant cared about, she was bringing her service dog. Things changed for Krist. Patrons and staff did not like the dog. One waiter stopped eating lunch with Krist. Other employees snubbed her and treated her rudely. Customers behaved similarly. Here's a sample of what happened:

Krist also testified that there were incidents in which [restaurant owners] Batas or Michael Kolombos "yelled" at her. Thus, on her second visit to Coopertown with the dog, a few days after the first, Batas, from behind the counter on the opposite side of the restaurant, stared at the dog and made growling sounds. Krist testified that when the dog then made a sound that Krist said was not a bark but sounded like "boof," Batas yelled at her that the dog was barking and he ordered her to leave the restaurant. She testified that on another occasion in December 2008, after she took the dog out from under her table to show it to another customer, Batas yelled at her, complaining that she was playing with the dog.

After Batas yelled at her on her second visit to Coopertown with the dog, Krist had complained to Michael Kolombos. Krist testified that Michael Kolombos said "[t]hat I was welcome" to have the dog in the restaurant but that "I should sit in the front of the store" and should "[e]at my breakfast and go." Thereafter, Krist began going to the restaurant less frequently; she went approximately every other day. She sat at a front table perhaps three times but then resumed sitting in the back in her favorite booth. She would arrive at about 9 a.m. and stay until around noon; but, she testified, "I didn't [stay to] eat lunch because no one"--meaning "Joe [Mugno] or any of his sons or any of the other waiters or anybody"--"would eat lunch with
me so there was no sense in staying."

Krist also testified that there was an incident in February 2009 and another in the summer of 2009 in which Batas and Michael Kolombos, respectively, yelled at her for having the dog lie  beside her chair or her booth, rather than under the table, and potentially imperil customers and waiters. Batas and Michael Kolombos similarly testified that on those occasions, when they asked Krist to move the dog, Krist had put the dog in the aisle.

Krist stopped going to the Coopertown Diner and then sued under Title III of the ADA, which regulates private establishments that are open to the public. Judge Daniels rejected her claim after a bench trial, and the Court of Appeals (Kearse, Carney and Wallace), after deferring to the district court's factual findings, affirms and finds there was no discrimination, for the following reasons:

First, and quite significantly, the Court of Appeals says that "we are inclined to agree with Krist that a Title III plaintiff who proves that she is disabled within the meaning of the ADA and that the defendant operates a place of public accommodation that failed to make reasonable modifications in its policies, etc., as necessary to provide her with the goods and services afforded by the defendant need not also prove that discrimination was intended." But while no intentional discrimination is required under Title III, that ruling is not enough to help Krist. The district court did not rule against her on the basis that the defendant did not intend to discriminate.

Second, although plaintiff stopped going to the diner because of the rudeness, the Court of Appeals upholds the district court's findings that "Krist failed to establish by a preponderance of the evidence that she was excluded from Coopertown after she acquired her service dog (the only period of which she complains); or that her service dog was excluded; or that her access to Coopertown, with or without the dog, was restricted." Relatedly, Krist was not actually excluded from the restaurant after she got the dog. "Krist frequented the restaurant with the dog in a manner that was 'not significantly different' from her prior custom was supported by its findings that, over a period of some 10 months, Krist went to the restaurant with the dog 'dozens and dozens' of times." Had the diner actually kicked her out of the place because of the dog, she might have a claim. But she was not actually kicked out.

Third, while the restaurant owners sometimes yelled at Krist, the district court had a factual basis to find that the yelling was not intended to drive her from the establishment. This holding shows that even customers with service dogs have to respect the place. The Court of Appeals writes,

the last two "yelling" incidents described by Krist occurred in February and September 2009 when Batas and Michael Kolombos, respectively, yelled at her across the restaurant for having put the dog in the aisle, potentially impeding customer traffic and waiter movements. One was an occasion when Krist was sitting at a table under which the dog could not comfortably lie because of the configuration of the base of the table. Krist had sat at the table despite the availability of seven booths (i.e., all but her favorite) at which she could have sat and put the dog under a booth table. The other occasion was one in which she was sitting in her favorite booth but put the dog in the aisle because of a previous incident in which the dog had found and eaten some indigestible food on the floor under the booth's table; Krist offered no evidence that there was still--or again--food under the table. Thus, with respect to two of the four occasions as to which she complained of yelling, Krist's own testimony supported an inference that she had placed the dog in the aisle unnecessarily and that the shouted requests concerned her creation of a safety hazard, because someone passing by could trip on the dog either as it lay there or because it might suddenly move.

Fourth, and most interesting for me, is the Court of Appeals' emphasis that Title III is not a general civility code. Krist argued otherwise, but the Second Circuit concludes that the social environment does not require polite behavior. "Although Krist complains that her friends at Coopertown became less friendly after she began bringing the dog, and that the owners shouted at her when she did not properly place the dog in a position where it could not suffer or cause harm, 'careful attention to the requirements of the statute' reveals that Title III is designed to prevent a facility offering public accommodation from denying individuals with disabilities 'goods[ and] services. We agree with the district court that the ADA does not impose a civility code." This reasoning will rein in claims like this, I am sure, as defendants will argue that the lawsuit is really about rudeness and not about exclusion.

 

No overtime for food warehouse supervisors

The Second Circuit holds that food warehouse supervisors are exempt from the FLSA's overtime entitlement under the "executive exemption"

The case is Ramos v. Baldor Specialty Foods, decided on July 12. The plaintiffs work the night shift in a warehouse run by a wholesale food distributor in The Bronx. They sued to recover unpaid overtime. The employer argued that plaintiffs are not entitled to overtime under the "executive exception" to the Fair Labor Standards Act. The issue is whether plaintiffs supervised "customarily recognized departments or subdivisions," that is, units with "a permanent status and a continuing function" under the regulations. The Court of Appeals (Lynch, Raggi and Pooler) finds that the "executive exception" applies and plaintiffs do not get their overtime pay.

Plaintiffs are "captains" in the warehouse. Their subordinates take orders from the plaintiffs and bring food products from the warehouse shelves and load them onto trucks that take the food to the grocery stores where, I guess, surly teenagers unload the trucks and place them nicely on the shelves.(At least that's the way that I remember it).

Normally, if you work more than 40 hours per week, you get overtime. But under the FLSA, not everyone qualifies for overtime. These cases usually turn on intricate analysis of the statute to see of the plaintiffs can maintain a class-action on behalf of similarly-situated employees. The Second Circuit says that these plaintiffs are exempt from the overtime entitlement. "Bona-fide executives" are among the exemptions. Now, when we think of executives, we think of guys sitting in an air-conditioned office in expensive suits talking on the phone to other executives. But the FLSA defines executives more broadly. The Second Circuit notes, "Admittedly, a warehouse worker who earns $700 per week ensuring that vegetables and other foodstuffs are loaded onto the correct delivery trucks and who lacks an office, a cubicle, or even a chair to call his own does not fit the popular image of a “bona fide executive.” Under the regulations,

“[t]he term ‘employee employed in a bona fide executive capacity’ . . . shall mean any employee”:

(1) Compensated on a salary basis at a rate of not less than $455 per week . . . , exclusive of board, lodging or other facilities;

(2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;

(3) Who customarily and regularly directs the work of two or more other employees; and

(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

Elements 1, 3 and 4 apply to plaintiffs. The question is whether the second element applies. This is a question of first impression for the Court of Appeals: "whether a unit can have 'permanent status and a continuing function' when it is functionally identical to other units, when it works the same shift as other units, and when it operates in the same physical space as other units." The Second Circuit says that these supervisors do in fact work in a customarily recognized department or subdivision of the warehouse even if the plaintiffs do not work in unique units or perform distinct tasks. The Court of Appeals finds no authority to support the plaintiffs' position, and no court has adopted such a position. Rather, Judge Lynch writes:

we see no reason that Congress would have intended to impose the distinction that plaintiffs ask us to impose here, between supervision of unique and nonunique teams. The purpose of the FLSA’s “bona fide executive” exemption, 29 U.S.C. § 213(a)(1), is to distinguish managerial employees from non-managerial employees. The job of supervising a team of employees becomes no less managerial merely because the team operates alongside other teams performing the same work in the same building. A company’s decision to organize its workforce in that way does not render each team a “mere collection of employees assigned from time to time to a specific job.”

Circuit sidesteps interesting HWE issue as academic

In a relatively routine sexual harassment case, the Court of Appeals notes that it has never decided an employer is liable for the harassment of non-employees. But it doesn't matter in this case, because there was no hostile work environment.

The case is General v. Center for Disability Rights, a summary order decided on June 5. While employed by the Center for Disability Rights as a home care attendant, a non-employee by the name of Taylor made six or seven sexually-explicit remarks to her, usually about her physical appearance. Taylor also said these things to someone else, who reported these comments to plaintiff. Taylor did not work for CDR but had supervisory authority over plaintiff.

The question of whether CDR is responsible for Taylor's harassment is an interesting one, and the Second Circuit (McLaughlin, Sack and Livingston) teases us with this issue of first impression:

This Court has yet to determine whether an employer may be held liable on a hostile work environment theory on the basis of the conduct of non-employees, such as Taylor. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) ("[W]e need not decide the precise contours of the duty, if any, that employers owe to employees who are subjected to harassment by outsiders such as customers..."

Courts don't like resolving complicated issues if they don't have to. And the Second Circuit doesn't have to here, "because Appellant has failed to adduce evidence sufficient to permit a reasonable trier of fact to conclude that anyone at CDR knew of her alleged harassment but failed to respond." If CDR did not know about the harassment, then it had no duty to correct the problem. This issue of management liability for third party harassment would be academic in this case. Someone else will have to brief and argue it.

What's a Title VII case worth?

That's the question that guides every employment discrimination case. For plaintiffs' lawyers, it comes up at the intake meeting with the potential client. Defendants want an answer in case they lose. Mediators need an answer to help everyone settle the case. Jurors want an answer when they are deliberating (they don't get that guidance, by the way). And the judge needs an answer to resolve a remittitur motion. This case provides some guidance.

The case is MacMillan v. Millenium Broadway Hotel, 2012 U.S. Dist. LEXIS 80765, a Southern District of New York case decided on June 11. The jury found that plaintiff was subjected to racially hostile work environment because a supervisor, Scudero, allowed co-workers to call him "the N word." In 2008, Scudero returned from a trip to New Orleans with six souvenir voodoo dolls that he distributed to managers around the office, to plaintiff's dismay. Plaintiff later saw one of the dolls hanging from a noose in the office. Another was hanging from a bulletin board. Human resources investigated, and some remedial measures went into place, but no one was disciplined or terminated as a result of the voodoo dolls. On top of this, plaintiff's co-worker used a racial epithet in the workplace. The Hotel investigated but was unable to corroborate the use of this epithet.

So that's the liability evidence. The jury awarded plaintiff $125,000 in compensatory damages and $1,000,000 in punitive damages. On defendant's post-trial motion, Judge Gardephe upholds the verdict but reduces the damages award considerably. Plaintiff was not fired from his position over this. He testified that his work environment was "horrible" and the voodoo doll incident "was very detrimental to me." Plaintiff's  daughter testified that plaintiff "was always sad" in working for Scudero and "wasn't as happy anymore" and "wasn't his same self" when Scudero became his supervisor.

Judge Gardephe notes that, in the Second Circuit, there are three kinds of pain and suffering in these cases: garden variety, significant and egregious. He cites Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009), for this proposition. Here's the thumbnail:

In 'garden variety' emotional distress claims, 'the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury.' Such claims typically 'lack[ ] extraordinary circumstances' and are not supported by any medical corroboration."

"'Significant' emotional distress claims 'differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony and evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses.'"

"Finally, 'egregious' emotional distress claims 'generally involve either "outrageous or shocking" discriminatory conduct or a significant impact on the physical health of the plaintiff.'" "In 'significant' or 'egregious' cases, where there is typically evidence of 'debilitating and permanent alterations in lifestyle,' larger damage awards may be warranted."

 This is worth knowing, and Olsen is a case that's worth reading for more insight into this. Each case is different, and not every civil rights violation can result in a large damages award. Plaintiff's case is "garden variety." The trial court is constrained by the evidence outlined above. Plaintiff did not seek medical treatment, miss work or lose any sleep or appetite. "Such evidence, at best, demonstrates 'garden variety' emotional distress. To the very limited extent that McMillan described his injury, he did so in 'vague or conclusory terms' without 'relat[ing] either the severity or consequences of the injury.' His claims were likewise 'not supported by any medical corroboration.'"

Judge Gardephe summarizes the cases in this area. "In the Second Circuit, '[g]arden variety' emotional distress claims 'generally merit $30,000 to $125,000 awards.'" However, "Where a plaintiff offers only sparse evidence of emotional distress, however, courts have reduced such awards to as little as $10,000." The Court distinguishes this case from one that entitled the plaintiff to more compensatory damages:

In Mugavero v. Arms Acres, 680 F. Supp. 2d 544 (SDNY 2010), the plaintiff "testified that her emotional distress from being terminated had specific consequences in the form of increased anxiety and insomnia ... and provided corroborating medical evidence." Moreover, this Court found that "the conduct ... went far beyond typical discipline imposed in the workplace, and threatened Plaintiff's ability to earn a living and practice her profession." Accordingly, the Court determined that "[g]iven that [plaintiff's former supervisor's] action was 'more offensive conduct' than is commonly seen in a 'garden-variety' case, neither the emotional distress award of $100,000 for Mugavero's termination nor the total emotional distress award of $175,000 [representing emotional distress damages of $100,000 for her termination and $75,000 for the supervisor's bad faith request to the Office of Professional Discipline to investigate plaintiff] shocks the conscience or is excessive."

As for punitive damages, the $1 million is reduced to $100,000. "A survey of punitive damage awards in discrimination and retaliation cases reveals that the $1 million award here is excessive and should be reduced significantly." Judge Gardephe adds, "[t]he Court finds that '[t]he defendant's conduct, while meriting some award of punitive damages, was by no means as reprehensible as that in many other [employment] discrimination . . . cases.' Cases upholding punitive damage awards of $200,000 or more generally involve discriminatory or retaliatory termination resulting in severe financial vulnerability to plaintiff, repeated incidents of misconduct over a significant period of time, repeated failures to address complaints of discrimination, and/or deceit. ... The Court concludes that a punitive damage award of no more than $100,000 is proper in this case."

2d Cir. rejects sanction for not implementing litigation hold

The Court of Appeals has provided guidance on "litigation holds," the mechanism by which organizations preserve potentially relevant evidence in anticipation that it will be sued. Litigation holds are a well-known procedure largely through Southern District rulings by Judge Scheindlin, including Zubulake v. UBS Warbug, 220 F.R.D. 212, 218 (S.D.N.Y. 2003), which said that "A party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter." In addition, in Pension Comm. v. Banc of Am. Secs., 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010), the district court held that “the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.” In particular, the court in Pension Committee suggested that after the duty to preserve has attached, it is gross negligence when the party has failed

to issue a written litigation hold: to identify all of the key players and to ensure that their electronic and paper records are preserved: to cease the deletion of email or to preserve the records of former employees that are in a party's possession, custody, or control; and to preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources.

In a recent decision, Southern District Judge Baer noted that "certain courts [around the country] have questioned the bright-line culpability rules that Judge Scheindlin promulgated in Pension Committee." GenOn Mid-Atl, LLC v. Stone & Webster, Inc., 2012 U.S. Dist. LEXIS 57712, at *38 (S.D.N.Y. Apr. 20, 2012). The Second Circuit agrees that the "gross negligence" standard is too harsh in determining whether to sanction the offending party.

The case is Chin v. Port Authority, decided on July 10. I wrote about other parts of the decision here. But Chin also discusses litigation holds. This discrimination case went to trial. While Port Authority appealed from the verdict, Chin cross-appealed over the district court's refusal to give the jury an adverse inference instruction after Port Authority destroyed the promotional folders used to make promotions decisions. Judge Livingston writes that "The Port Authority does not dispute that, upon receiving notice of the filing of plaintiffs' EEOC charge in February 2001, it had an obligation to preserve the promotion folders yet failed to do so." Yet, the Court of Appeals agrees that the district court did not abuse its discretion in declining to give an adverse inference charge to the jury. The Second Circuit writes:

Howard Chin argues that the Port Authority's failure even to issue a litigation hold regarding the promotion folders at any point between 2001 and 2007 amounted to gross, rather than simple, negligence. We reject the notion that a failure to institute a "litigation hold" constitutes gross negligence per se. Contra Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 464-65 (S.D.N.Y. 2010). Rather, we agree that "the better approach is to consider [the failure to adopt good preservation practices] as one factor" in the determination of whether discovery sanctions should issue. Moreover, as the district court recognized, a finding of gross negligence merely permits, rather than requires, a district court to give an adverse inference instruction. Even if we assume arguendo both that the Port Authority was grossly negligent and that the documents here were "relevant," we have repeatedly held that a "case-by-case approach to the failure to produce relevant evidence," at the discretion of the district court, is appropriate. 

 Applying this new standard to the case at hand, the Court of Appeals writes:

In this case, the district court concluded that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process and the plaintiffs' ample evidence regarding their relative qualifications when compared with the officers who were actually promoted. At trial, Howard Chin was able to establish his service record and honors, and Chief Charles Torres testified that Howard Chin was very smart and a good employee. Under these circumstances, the district court did not abuse its discretion in concluding that an adverse inference instruction was inappropriate.

 

Court of Appeals affirms racial discrimination verdict against Port Authority

The Second Circuit has upheld a verdict finding that the Port Authority racially discriminated against eleven Asian-Americans in denying them promotional opportunities. But it remands the case for a new trial on damages because the jury improperly awarded them compensatory damages on the basis of time-barred acts.

The case is Chin v. Port Authority, decided on July 10. The case raises a number of important issues relevant to Title VII law, including the relevance of certain statistical analysis as well as time-barred discriminatory acts in proving damages.

First, agreeing with all other Circuits that have taken up this issue, the Court of Appeals holds that the "pattern or practice" theory of liability is inapplicable when the plaintiffs are not bringing a class action. "Pattern or practice" entails showing that the employer's hiring pattern or policy discriminated against minority employees. We distinguish this from the more particular prima facie case under the McDonnell-Douglas burden of proof, i.e., adverse employment action under circumstances creating an inference of discrimination. The Second Circuit (Livingston, McLaughlin and Cabranes) holds that "permitting private plaintiffs to use the pattern-or-practice method of proof outside the class action context would require us to extend this method beyond its current application. This we decline to do. Such an extension would allow nonclass private plaintiffs who have shown a pattern or practice of discrimination (but have not made out a disparate impact claim) to shift the burden to employers to prove that they did not discriminate against a particular individual. But this would conflict with the Supreme Court's oft-repeated holding in the context of disparate-treatment, private nonclass litigation that 'the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'"

The district court therefore should not have instructed the jury that it may find Port Authority liable on the "pattern or practice" theory. The judgment on this claim is reversed. (The Court does say that proof that the employer had a "pattern or practice" of discrimination may help individual plaintiffs prove their disparate treatment claim under the traditional McDonnell-Douglas theory).

But all is not lost for plaintiffs on this appeal, even if they lose on the first issue. The jury also found that the plaintiffs were the victims of disparate treatment because of their race, and the Second Circuit says there was enough evidence to support that verdict. None of the 12 Asian-Americans on the eligible list were promoted during the relevant time period, in contrast to 36 out of 259 whites. The plaintiff's statistical expert testified that this disparity would happen by chance 13 percent of the time. Normally, this would be a statistically insignificant percentage, suggesting that discrimination was not the reason. But the Court of Appeals says that two facts nonetheless support the verdict. First, no Asian-Americans were promoted, and second, the evidence established that the plaintiffs were more qualified than some of the white officers who were promoted. "In the context of this case, it would not be unreasonable for a juror to find Dr. Cavanagh's statistics significant despite only being significant at the 13-percent level."

The plaintiffs also prevailed on their disparate impact claims. That theory of liability allows the plaintiff to win if a facially neutral employment practice that is not job-related has a disparate impact against racial minorities, sort of like a promotional exam that does not ask potential employees job-related questions. Here, a Board made recommendations for promotion. That recommendation "was neither necessary nor sufficient for promotion, and the weight it carried in the process was both unclear and variable." That questionable process suggests that the process did not allow for promotions on the basis of job-related input from the Board.

The plaintiffs have to undergo another trial, however. The jury awarded them damages on the basis of discriminatory acts that predated the statute of limitations. The plaintiffs argued that a series of promotion denials constituted the kind of continuing violation that brings otherwise time-barred events before the jury for the purposes of awarding damages. (Normally, time-barred events are only relevant to prove intent to discriminate on the more recent, timely employment decisions). The Court of Appeals rejects the plaintiff's creative argument, noting that the Supreme Court said in 2002 that promotion denials are discrete events for which plaintiff may file a charge of discrimination with the EEOC (as opposed to sexual harassment which may comprise a continuing violation and entitle the plaintiff to damages for all the harassment, even if some of it predated the statute of limitations). What the Court of Appeals is saying, then, is that promotion denials may not constitute a continuing violation under Title VII. Taking the lead of the other Circuits that have ruled on this issue, the Second Circuit says that "[d]iscrete acts of this sort, which fall outside the limitations period, cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period." Since the jury may have included time-barred claims with respect to each of the plaintiffs, there will be a new trial on damages for pain and suffering and lost wages. As some of the plaintiffs got equitable relief on time-barred claims, the new trial on damages will cover those damages also.

Court rejects "pattern or practice" case against Section 1983 defendants

The Court of Appeals holds that the "pattern or practice" theory of employment discrimination is not appropriate in lawsuits against individual government officials. These kinds of cases are only appropriate against government entities.

The case is Reynolds v. Barrett, decided on July 11. The plaintiffs are inmates who claim they were given racially discriminatory assignments while employed at Elmira Correctional Facility. I bet you didn't know inmates could bring employment discrimination suits against the prisons that employed them. They can. These plaintiffs sought a class action on behalf of all non-Caucasian inmates who worked in the print shop, as well as those who were deterred from working in the print shop for racial reasons.

Apart from the fact that the plaintiffs are inmates, what makes this case unique is that they did not sue under Title VII but Section 1983 and related statutes, claiming that the individual defendants violated the Equal Protection Clause. Also unique is the theory of liability: "pattern or practice" as opposed to disparate treatment liability. They also sue under disparate impact liability.

Disparate impact liability is proven where the plaintiff shows that a facially neutral employment policy has a racially disparate impact for reasons that that bear no relationship to the job. The Court of Appeals (Wesley, McLaughlin and Cabranes) holds that disparate impact cannot violate Section 1983 and the Equal Protection Clause. This is because Section 1983 and the Equal Protection Clause require proof of discriminatory intent. Disparate impact, meanwhile, does not require a showing of discriminatory intent but discriminatory effect. 

The Court also rejects the "pattern and practice" claim. You don't see many "pattern or practice" cases in the Second Circuit, probably because they are expensive to litigate and difficult to prove. The Second Circuit provides a brief overview of how these cases work. The plaintiff's prima facie case must show a policy, pattern or practice of intentional discrimination against a protected class. Statistics can get you there if a gross disparity exists. The employer then has to show that the statistical evidence is insignificant or inaccurate. What knocks out the plaintiffs' claim is that under "pattern or practice," the plaintiffs have to show that the entity engaged in intentional discrimination. Here, the plaintiffs are suing individual defendants under this theory of discrimination. The Court says:

But statistics showing entity-level discrimination shed little light on whether a particular individual defendant engaged in purposeful discrimination. Just as statistics alone are insufficient to establish a prima facie case under the McDonnell Douglas framework, statistics demonstrating employer-wide discrimination are insufficient to establish which individual defendants engaged in purposeful discrimination. Statistical disparities may be, and often are, attributable to a subset of actors–not to every actor who had an opportunity to discriminate.

Thus, to import the pattern-or-practice framework into the Equal Protection context would substantially circumvent the plaintiffs’ obligation to raise a prima facie inference of individual discriminatory intent. If “[s]tatistics alone [could] make out a prima facie case of discrimination,” plaintiff could shift the burden to the defendant without any showing of individual discriminatory intent. Such a result would seem to contravene well-established precedent that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause” in a claim brought pursuant to § 1983.

In other words, "Proffering statistical evidence that purports to show discrimination at an entity and naming as defendants all of the individuals who could possibly be responsible for such discrimination may support an inference that one or more of the named individual defendants committed acts of intentional discrimination. But such evidence provides little or no basis for discerning which individual  defendants are responsible for the statistical disparities."

State law preventing "nonimmigrant aliens" from working as pharmacists is unconstitutional

Constitutional law students know that laws that discriminate based on alienage must satisfy strict (or close) judicial scrutiny in order to satisfy the Constitution. The State of New York did not know this, which is why it passed a law that said that non-immigrant aliens could no longer work as pharmacists after their waivers expired in 2009. The Court of Appeals strikes down the law under the Equal Protection Clause.

The case is Dandamudi v. Tisch, decided on July 10. Most of the plaintiffs have temporary work visas for their specialty occupations. All plaintiffs in this case have been legally authorized to reside and work in the United States for many years. Here's the problem: since 2009, New York law "provides that to be eligible for a pharmacist’s license in New York, an applicant must be either a U.S. Citizen or a [Legal Permanent Resident]. The statute bars all other aliens, including those with work authorization who legally reside in the United States, from becoming licensed pharmacists." This means the plaintiffs are unable to work as pharmacists in New York.

This law is unconstitutional. The Second Circuit (Wesley, Hall and Underhill [D.J.]) says,

the Supreme Court has repeatedly affirmed the general principle that alienage is a suspect classification and has only ever created two exceptions to that view. We decline to create a third in a case where the statute discriminates against aliens who have been granted the legal right to reside and work in the United States. Under a strict scrutiny analysis, § 6805(1)(6) of the New York Education Law violates the Equal Protection Clause. 

The first exception to the prohibition against this kind of discrimination "allows states to exclude aliens from political and governmental functions as long as the exclusion satisfies a rational basis review." The second exception allows the states to deny benefits and opportunities to undocumented immigrants. Neither exception applies here. So the State of New York tries to create a new exception. The Second Circuit says,

Without an existing basis for distinguishing [the] requirement that such statutes are strictly scrutinized, New York proposes a third exception—the Fourteenth Amendment’s strongest protections should apply only to virtual citizens, like [lawful permanent residents], and not to other lawfully admitted aliens who require a visa to remain in this country. Defendants argue that the Supreme Court’s strict scrutiny analysis of classifications based on “alienage” is inapplicable to classifications of nonimmigrant aliens and that only rational basis review of the statute is required.

The Second Circuit is not buying it. While the Supreme Court has never applied strict scrutiny analysis to laws that discriminate against non-immigrant aliens, that doesn't mean this kind of discrimination is legal. The Court has never distinguished between classes of legal resident aliens. "Nothing in the Supreme Court’s precedent counsels us to 'judicially craft[] a subset of aliens, scaled by how [we] perceive the aliens’ proximity to citizenship.'  Rather, the Court’s precedent supports drawing a distinction among aliens only as between lawfully admitted aliens and those who are in the United States illegally." The state law is thus unconstitutional because there no compelling interest to support it. The plaintiffs win.

Sloppy FMLA paperwork means no FMLA leave

You don't see too many FMLA cases in the Second Circuit. This one alleges that management interfered with the plaintiff's request for time off because of a medical condition. Plaintiff loses the case under circumstances are all-too-common.

The case is Porter v. Donahoe, a summary order decided on June 5. Yes, the Family Medical Leave Act gives you up to 120 days to take care of a medical condition. No, you don't always get it for the asking. The Second Circuit (Winter, Chin and Droney) notes that "[w]hen an employee is eligible and requests leave under the FMLA, '[a]n employer may require that [the] request . . . be supported by a certification issued by the health care provider' of the family member for whom the employee is caring. A certification is 'incomplete' if 'one or more of the applicable entries have not been completed.' A certification is 'insufficient' if the entries are completed, but 'the information provided is vague, ambiguous, or non-responsive.'"

Plaintiff loses this case because his paperwork submitted in July 2006 was incomplete. It was the same paperwork that he submitted in March 2006 (which didn't get him FMLA leave at the time because he was not yet eligible) except that the March 2006 form was redated for July 2006. More importantly, "Porter failed to answer several of the questions on the form. He did not indicate, for example, the length of time he would need to assist his mother or the number of days that he would need to be absent from work. Porter does not dispute that he left some answers blank and that in response to other questions, he wrote, 'unknown at this time.'" Porter had a chance to correct the paperwork, but he did not do so. Instead, he tried to revise the form with "vague and unhelpful" responses to the questions. Other questions remained unanswered.

Lessons to be learned from this case are obvious: fill out the paperwork properly and read the FMLA form carefully to make sure you are doing what the employer requires. It is not enough to request FMLA leave. You have to submit the right paperwork.

Can a public employer fire someone for testifying in court?

A probationary DSS caseworker in upstate New York was fired on the same day that she testified against the County's position on a contested child neglect petition. While the County said the mother was not able to raise her child, the plaintiff (who had worked with the mother as part of her job duties) testified as a County employee that the mother was not neglectful and the child should be returned to her. Is the plaintiff's termination legal?

The case is Kiehle v. County of Cortland, a summary order decided on July 3. I handled the Kiehle appeal. In 2003, the Second Circuit held in Catletti v. Rampe that public employees generally cannot be fired in retaliation for their truthful testimony in federal court. This holding recognized the need for honest and uninhibited trial testimony. However, in 2006, the Supreme Court held in Garcetti v. Ceballos that public employee speech made pursuant to official job duties is not protected speech. Since Kiehle testified on the basis of her work-related knowledge about the mother's suitability to raise her child, this case highlights tension between Catletti (and other similar cases that protect witnesses from retaliation) and Garcetti, which was not a testimony retaliation case. The trial court held that Kiehle's speech was unprotected, and the Court of Appeals (Winter, Chin and Straub) affirms, dismissing the case.

This case is a summary order, so the decision is non-precedential. Still, the holding undercuts Catletti, doesn't it? Here is the reasoning in Kiehle:

As the district court concluded based on the indisputable facts, Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing; rather, she testified as a government employee -- as a DSS caseworker. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Thus, the district court did not err in granting summary judgment to defendants.

So the Constitution allows public employers to fire certain subordinates for testifying in court. There is now a Circuit split on this issue. In 2008, the Third Circuit held in Reilly v. Atlantic City that the reasoning in cases like Catletti survives the reasoning in Garcetti. While Garcetti protects management's right to control the work-related speech of its employees, Reilly said that other values are at stake when those employees testify in court, i.e., unvarnished testimony without fear or favor.

Nasty and disgusting, but not free speech

A public school teacher in New York City alleges that she was retaliated against for "complaining that she had contracted scabies from the 'unsanitary' conditions in her classroom." Ugh! Can you stand it? Disgusting, yes. Free speech, no.

The case is Massaro v. New York City Department of Education, a summary order decided on May 31. Public employee speech is protected under the First Amendment if it addresses a matter of public concern. The plaintiff also has to speak as a citizen; speech pursuant to the employee's official duties are not protected. That's job-speech, not free speech. Also, private complaints are not free speech, and management can discipline or otherwise retaliate against the employee for this.

Summary judgment against plaintiff is affirmed. She did not speak as a citizen but as an employee. The Court of Appeals (Kearse, Carney and Wallace [9th Cir.]) says that plaintiff "aired her complaints only to several school administrators rather than to the public, and that most of those complaints were made in the context of internal safety and medical absence-related forms (at least one of which was marked 'confidential'), 'for which there is no relevant citizen analogue.'"

The Second Circuit has said in the past that public employee speech is not protected under the First Amendment if it is "part-and-parcel" of her ability to perform her job duties. This open-ended language has the potential to kill off a lot of retaliation claims, because the most important speech is usually related to the public employee's position, and the speech will likely concern a matter related to everyday responsibilities.

Ever since the Court of Appeals adopted the "part-and-parcel" language in Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), I have been intrigued by this rationale. Weintraub interprets a Supreme Court ruling, Garcetti v. Ceballos, 547 U.S. 410 (2006)). The district court said,

Plaintiff's complaints regarding the sanitary conditions in her classroom and the health conditions that arose from them were made pursuant to her duties as an employee. Classroom safety, the practical availability of proper teaching space and the teacher's ability to perform her duties in the space are, like classroom discipline, "indispensable prerequisite[s] to effective teaching and classroom learning."

 Here's how the Court of Appeals sees it:

Massaro’s complaints concerned her ability “to properly execute [her] duties” as a public school teacher, because they were aimed at resolving her health issues so that she could continue to teach, and ensuring that she had a safe and clean environment in which to work and that her use of sick days was appropriately credited. Accordingly, the undisputed evidence demonstrates that Massaro’s statements to defendant were made pursuant to her official duties.

I guess there was another way for the Court to resolve this case: by holding that the speech was not a matter of public concern, but was instead a private grievance. The district court held as such. Certainly the health issue was unique to plaintiff; it was she who got the scabies. But the Supreme Court has said that speech touches upon a matter of "public concern" if it would be of interest to the community at large. I suppose the community -- and the parents of plaintiff's students -- would be interested to know that there were mites in her classroom.

NYC taxi wheelchair accessibility injunction is vacated

In December 2011, a district court in New York City ordered the Taxi and Limousine Commission to make the taxicabs in New York City accessible to people using wheelchairs. The Second Circuit has vacated the injunction because the failure to make taxicabs accessible does not violate the Americans with Disabilities Act.

The case is Noel v. New York City Taxi and Limousine Commission, decided on June 28. District Judge Daniels granted summary judgment against the City for not providing "meaningful access to taxi services for persons with disabilities. The district court also entered a temporary injunction that requires that all new taxi medallions and street-hail livery licenses be limited to vehicles that are wheelchair accessible (“accessible taxis”), until the TLC proposes and the district court approves a comprehensive plan to provide meaningful access to taxi service for wheelchair-bound passengers." To the uninitiated, this ruling would make sense. Doesn't the ADA require governmental entities to make their services accessible to the disabled? Not in this case, primarily because the taxi business in New York City is a private -- and not public -- entity.

Some background: there are more than 13,000 medallion taxis in New York City. About 230 are wheelchair accessible. So, 98 percent of medallion taxis are not accessible. Someone who needs that accessibility had a 3.31 percent chance of hailing a taxi within 10 minutes. Without a wheelchair, it's 87 percent. Sixty thousand New York City residents use a wheelchair.

The ADA is supposed to be broadly interpreted, but the Second Circuit (Jacobs, Kearse and Hall) cites a Colorado district court case from 1998 for the proposition that "the scope of Title II is not limitless." The relevant ADA regulation here is 28 CFR 35.130(b)(6), which prohibits the TLC from refusing to grant licenses to persons with disabilities who are otherwise qualified to own or operate a taxi. But the regulation cannot be interpreted to require the City to make the taxicabs accessible to the disabled. While the regulation helps those seeking the licenses, "[i]t does not assist persons who are consumers of the licensees' product."

The heart of the appeal is plaintiffs' argument that the TLC licenses an industry that does not make its taxicabs accessible. Here's the problem with that argument: Under the ADA, "the programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by Title II(A)." In plain English, this means that an activity is not covered by the ADA solely because it is licensed by a public entity. The public entity here is the TLC. But the taxicab industry in New York City is a private industry. Even if the private industry does not make its services accessible, that does not mean that the public entity that is regulating the private industry is violating the ADA, "unless the private industry practice results from the licensing requirements."

The opinion goes on to analyze other ADA regulations that the plaintiffs claim support their position. If you've handled ADA litigation, you know the regulations are extensive. None of the regulations help the plaintiffs, though. Looks like a huge loophole in the ADA. And Title III of the ADA doesn't apply, either, because "Title III expressly exempts taxi providers from purchasing or leasing 'accessible automobiles.'" So the injunction against the TLC is vacated, and the Court of Appeals grants summary judgment to the defendants on the Title II(A) claim.