Win some, lose some in FELA damages appeal

Here's an interesting Federal Employers' Liability Act case that shows that the trial judge has authority to order a new trial if the jury does not award the injured plaintiff enough money.

The case is Anderson v. Metro-North, a summary order decided on July 16. While working for the railroad, Anderson suffered an electric shock after coming into contact with a live power line. As Metro-North conceded liability, the case went to trial on damages. The jury awarded Anderson over $2 million in lost wages and pain and suffering. Judge Robinson ordered a new trial on damages for past and future pain and suffering because the jury only awarded $87,500 for past pain and suffering and $100,000 for future pain and suffering over ten years. The next jury gave Anderson $200,000 for past pain and suffering and $925,000 for future pain and suffering over 32 years.

Judge Robinson granted the new trial because thought the award for past and future pain and suffering was "so inadequate as to shock the judicial conscience and constitute a denial of justice." The trial court acted within his discretion in concluding that the approximately $187,000 in damages was simply not enough. You don't see this very often, but sometimes a low damages award entitles the plaintiff to a new trial. Anderson gets to keep the second jury award on past and future pain and suffering.

The district court also granted a new trial on future wage and fringe benefits. The first jury gave Anderson about $425,000 in damages for 10 years of lost wages and benefits. The trial court thought this was too low because "no evidence had been produced that Anderson was presently disabled but would eventually recover his health sufficient to allow him to resume his duties as an employee of Metro-North."  The second jury gave Anderson a lot more money for these damages.

But the Court of Appeals (Leval, Pooler and Livingston) says the first jury award was legitimate because the jury could have relied on evidence to the effect that Anderson could, in fact, recover in time to resume working for Metro-North; his injuries were not permanent. The damages award for future lost wages and benefits has support in the record, particularly since the railroad's expert witness testified that plaintiff was not currently disabled at all. Since Judge Robinson should not have vacated this particular jury award, the second trial on these damages should not have happened. What this means for Anderson is that the second damages verdict for future wage loss and benefits in the amount of approximately $1.4 million is vacated.

Inmate wins deliberate indifference case against corrections officer

Congress did what it had to do in the mid-1990s when it made it harder for inmates to win their civil rights lawsuits. Under the Prison Litigation Reform Act, inmates must first grieve their complaints in-house before they could file suit in court. Of course, this measure killed off the bogus lawsuits, but some good ones also get filed, and this may be one of them.

The case is Dennis v. Westchester County Jail, a summary order decided on June 13. The case was dismissed because Dennis did not file an internal grievance. He "was advised that the issue was non-grievable, and he was not given a grievance form." While defendants say that Dennis could get a form from the prison law library, that was not the case here. As the district court made no finding as to whether plaintiff tried to file a grievance and whether there was a way for him to do so, the case is remanded to see if "special circumstances" justify his failure to file a grievance.

The Second Circuit (Chin, Jacobs and Droney) also says that plaintiff has enough evidence to win a deliberate indifference case against a corrections officer, Hopkins, who allegedly did not intervene when other inmates threatened to assault him. (Jail officers have to protect the inmates from beatings). The Court says:

One of the assailants testified that he informed Hopkins of the planned assault, that Hopkins replied that “he wouldn’t mind, you know, do what you got to do,” that Hopkins instructed another officer to open a gate separating Dennis from the assailants, and that, during the assault, Hopkins told the assailants: “you all better hurry up and finish, because the [ERT] is coming.” This evidence is creates a fact issue "as to whether Hopkins was deliberately indifferent to a substantial risk of serious harm to Dennis.   

Poor job performance knocks out discrimination case

Not all discriminatory comments by management give the plaintiff-employee a case under Title VII. This case provides a good example why poor job performance will usually result in dismissal before trial. Poor legal advocacy doesn't help, either.

The case is Lam v. Sephora USA Inc., a summary order decided on July 18. Plaintiff was a loss prevention agent at a Sephora retail store. He was fired after violating defendant's policies and disobeying the direct orders of two supervisors. He was repeatedly reprimanded in a series of performance reviews over the course of five years for not complying with defendant's procedures, and he got two serious warnings within a few months of his termination, including one for making a customer feel uncomfortable. He also disobeyed an order to stop apprehending customers (a strange order for a loss prevention agent). This transgression involved falsely accusing a customer of shoplifting, prompting the customer to threaten a discrimination lawsuit. There's other misconduct, but you get the picture.

So how does plaintiff claim discrimination? He said in deposition that a store manager, Seda, told him that she was from Puerto Rico and was therefore a U.S. citizen. During that conversation, plaintiff said he was from Senegal. But in his summary judgment affidavit, plaintiff recalled the conversation differently. He attested that Seda told him that "This country is not Africa, it is the United States, and it belongs to Americans and Puerto Ricans." The Court of Appeals (Kearse, Carney and Wallace [Visiting C.J.]) says this contradiction cannot create a triable issue of fact because it differs from plaintiff's deposition testimony. Moreover, Seda's alleged statement does not show bias against people from Senegal or that plaintiff's national origin played a role in his termination.

More interestingly, plaintiff also testified in deposition that, after Seda saw him change into African clothing to attend his mosque, Seda said, "This place is not the mosque, when I come back from vacation, I kick him out." This statement may show religious bias on Seda's part, but it does not get plaintiff a trial. The "I kick him out" part of the alleged admission was not emphasized in the district court at all. The Court of Appeals tells us how this potentially damaging evidence was de-emphasized throughout the case:

Such a statement might ordinarily suggest that religion could have played a role in the decision to terminate Lam, at least insofar as Seda’s involvement in that decision is concerned. We note that Lam did not refer to Seda’s alleged pledge to “kick him out” at all in his complaint, his affidavit, his memorandum of law in opposition to summary judgment in the district court, his response to defendants’ Rule 56.1 statement, or when discussing the relevant evidence of religious discrimination during oral argument before the district court. Lam’s omission of the “I kick him out” statement from each of these submissions—in which he stated only that Seda said, “[T]his is a workplace, not a mosque”—was particularly striking in his attorney’s oral argument against summary judgment in the district court. When the court observed that there was a “disconnect” between the allegedly overheard statement and Lam’s termination, his attorney made no effort to argue to the court that a connection between Seda’s religious animus and Lam’s termination was inherent in Seda’s own juxtaposition of her negative reference to the “mosque” and her alleged announcement, “I kick him out.” ... Lam ... relies exclusively on his own testimony as to Seda’s mosque and kick-him-out statement, despite the fact that his deposition testimony was that Seda made that statement to three other Sephora employees who were known to him. The record contains no indication that Lam made any effort to take the depositions of any of those employees or that he asked the district court for more time in order to do so. 

Summary judgment is therefore affirmed. What does this case tell us? A few things. First, bad job performance is difficult to overcome in employment discrimination cases. The Court of Appeals is unlikely to get past the kind of performance deficiencies that plaintiff exhibited here. Second, we have an advocacy problem. Plaintiff testified at deposition that his supervisor made a biased comment about his religion. But that comment was not emphasized in this litigation until the case reached the Court of Appeals. I have not seen the Second Circuit issue a ruling quite like this, where the plaintiff offers potentially useful information at deposition but fails to highlight it when it really counted, in opposition to summary judgment. True, this is sworn testimony that the plaintiff preserved at deposition. But while depositions are the place to lay out this evidence, you have to push this kind of evidence in the district court. The Second Circuit probably sees this testimony as an afterthought. Holding back on using this evidence won't cut it.

No habeas claim for state law violation in criminal court

Habeas corpus petitions are the remedy of last resort for inmates who want to get out of jail. To win, you have to show that your state court conviction violated the U.S. Constitution. Since you have to show that the conviction violated federal law, the defendant here does not get a new trial.

The case is Freeman v. Kadien, decided on July 3. Freeman was convicted of, among other things, vehicular assault and DWI after he cut someone off on the Thruway, causing an accident and seriously injuring another motorist One piece of evidence against him at trial was obtained from a blood draw pursuant to a warrant that violated state law. (Freeman refused a breathalyzer test and the prosecutor got a warrant to draw Freeman's blood). The state Appellate Division said this evidence was harmless error. Since that is a state law determination, it cannot support a habeas claim.

There is no violation of federal law. That kills the habeas petition. Normally, to challenge a state court conviction, you have to show that the state court error had a "substantial and injurious effect" on the case. That only applies to errors of federal law. While the Appellate Division said that the erroneous evidentiary ruling was harmless, that's a state law determination, not a federal one. The Second Circuit (Raggi, Sack and Koeltl [D.J.]), says, "a harmlessness determination regarding an underlying error of state law does not implicate a freestanding constitutional right. Rather, the harmfulness of evidence admitted in violation of state law is itself a question of state law to which the federal 'substantial and injurious effect' standard does not apply."

Quinnipiac University loses Title IX athletic discrimination case

The Court of Appeals holds that a trial court in Connecticut properly ruled that Quinnipiac University violated Title IX because it did not grant equal athletic opportunities to female athletes. The University loses in part because "competitive cheerleading" does not qualify as an athletic opportunity for women under Title IX.

The case is Biediger v. Quinnipiac University, decided on August 7. Under Title IX, athletic opportunities for male and female students must be substantially proportionate to their respective enrollments at the school. The federal Office of Civil Rights requires that "a genuine athletic participation opportunity must take place in the context of a 'sport.'"

The University lost the trial because the district court had a factual basis to find that Quinnipiac was overcounting female athletes who were on multiple rosters for related track and field sports. It counted as 54 athletic participation opportunities the cross-country, indoor track and outdoor track roster positions held by the same 18 women. In other words, it counted these 18 athletes three times because they were on different teams. But these women were required to play on all three teams. Male athletes did not face these requirements. The University was "'pad[ding] its rosters' with female athletes who had 'no hope of competing or otherwise participating meaningfully during the indoor and outdoor track seasons." The Court of Appeals (Raggi, Winter and Chin) says the district court properly discounted some of the roster spots on these three teams to reduce the number of female athletes under Title IX.

The University also loses because "competitive cheerleading" is not a sport under Title IX. As Quinnipiac had used the 30 female roster spots for this "sport" in claiming that women had equal athletic opportunities, this holding further favors the plaintiffs. The University created this as a varsity sport, but unlike normal cheerleading, competitive cheerleaders

do not attempt to elicit crowd response; generally do not use pom-poms, megaphones, signs, or other props associated with [sideline] cheerleading teams; . . . wear uniforms consisting of shorts and jerseys, much like what women’s volleyball players don; and emphasize the more gymnastic elements of sideline cheerleading, such as aerial maneuvers, floor tumbling, and balancing exercises, to the exclusion of those activities intended to rally the watching audience.

The NCAA does not recognize this as a sport. Nor does the U.S. Department of Education. The University did not conduct off-campus recruiting for this activity, and there are no uniform set of rules governing competitive cheerleading, and Quinnipiac's team faced both intercollegiate competitive cheerleading teams and also "a motley assortment of competitors," including possibly high-school age opponents. There is also no progressive playoff system leading to a championship game.

In the end, after discounting the female athletes whose roster positions do not satisfy Title IX standards, there is a 3.62 percent disparity between male and female athletes. This is a slim percentage, but enough for plaintiffs to win under the circumstances, including the causes of the disparity.

I'll have a bowl of Iqbal, please

If you sue people for a living, you know the Iqbal case. Iqbal is a Supreme Court case from 2009 that says the lawsuit has to contain plausible claims. The good old days of writing a short complaint that simply places the defendant on notice of the claim are over. You have to file a detailed complaint now, and the allegations have to plausibly support your case. The Court of Appeals has not provided too much guidance in this area for employment discrimination cases, so we take the few morsels as we find them. Here's one case.

The case is Drumm v. SUNY Geneseo College, a summary order decided on June 29. Drumm is a female who sued the college for gender discrimination/retaliation under Title VII. The lawsuit is dismissed under Rule 12, which means that case does not get out of the starting gate, without any discovery.

In order to plead a Title VII retaliation case, the plaintiff has to allege that she complained in good faith about gender discrimination, prompting some thin-skinned administrator to retaliate because he couldn't handle the truth. But that "good faith" requirement is what knocks out the complaint. Drumm only alleges that she "had a good faith basis to believe that she was being treated differently on the basis of her sex." This is too conclusory to survive a motion to dismiss under Iqbal. Without a greater factual basis to explain why she had a good faith belief, the federal courts are not going to subject the defendant to 100+ hours of discovery and summary judgment motion practice before the case is dismissed on the merits.

Another allegation in the complaint that might support the retaliation claim is Drumm's statement that "on two occasions day positions she requested were given to younger female employees." This, too, is not enough to show that Drumm had a good faith belief that she suffered the gender discrimination necessary to predicate a retaliation claim. While the Court of Appeals (Calabresi, Lynch and Lohier) does not provide any reasoning for this holding, it's probably not enough to say you were treated unfairly when other women got the position. And, while Drumm alleged that a supervisor "berated" and her and subjected her to harsh comments (he called her a "disappointment"), that only represents "general allegations of mistreatment" and not gender discrimination.

The Second Circuit drops a footnote suggesting how this complaint could have survived the motion to dismiss. "We note that plaintiff has made no allegations regarding how her supervisor treated other employees. An allegation that, for example, her supervisor directed harsh comments only at female employees might have provided a good faith basis for plaintiff’s complaint of gender discrimination, but the plaintiff makes no such allegation."  So there's some legal advice from the Court of Appeals on how to draft your pleadings.

Summary judgment affirmed in political retaliation case

The First Amendment protects public workers from politically-motivated retaliation. In this case, the plaintiff loses because the hostility was based on crude managerial practices as opposed to political discrimination.

The case is Wrobel v. County of Erie, decided on August 1. Wrobel worked in the highway department when the newly-elected County Executive appointed a supervisor, Naylon, who wanted to shape things up and repeatedly told subordinates that he distinguished between employees from the old and new administrations. Let's put it this way: Naylon was not a nice guy. As the Court of Appeals (Jacobs, Pooler and Calabresi) notes, "Naylon was overt in his dislike for those who had preceded him in the Aurora Barn [a highway department facility] and his desire to purge the facility's hold-overs." Various employees were therefore transferred, including plaintiff. Is this enough to show political discrimination?

It is not. Summary judgment is affirmed. Judge Jacobs notes that even politically neutral employees can bring a First Amendment retaliation claim, as well as those who suffer retaliation for supporting the party that lost the last municipal election. But association is only protected under the First Amendment if it relates to a matter of public concern, i.e., political views. That did not happen here. Here's the gist of the Second Circuit's reasoning:

To prove that his political indifference was the reason Naylon and Rider mistreated him, he relies principally on Naylon’s references to an “old regime” and a “new regime.” Assuming that this designation does in fact distinguish between employees brought in by Naylon and those already there when he arrived, there is no evidence or available inference that this distinction is political in the sense that it relates to any political, social, or other community concern. Wrobel submitted evidence that Naylon questioned him about his friends at work, ordered him to tell a friendly former co-worker to stay away from the Aurora barn, and blamed the “old regime” for difficulties at the Aurora barn. Nothing in the record demonstrates that the dysfunction at the Aurora barn was related to anyone’s political association. The record shows instead a toxic form of “office politics” that, no matter how severe or how reprehensible, does not violate the First Amendment. Wrobel alleges no more than generalized references to a heightened standard of performance in the wake of a change of political regime.

That is simply to be expected when the voters replace one set of managers with another; the recently-elected call it reform. Naylon’s passing references to a “new regime” and an “old regime”, without more, cannot transform incompetent and heavy-handed management into a violation of the First Amendment.

This all looks like a close call, and Judge Calabresi certainly thinks so, stating in dissent that while the case is not a slam dunk, a jury could find in plaintiff's favor. He reaches this conclusion through a co-worker's testimony that Naylon said, "we know you guys are all democrats, hired by the other administration." Naylon said this at the same time he talked about getting "rid of the old regime." 

No-demonstration zone at 2004 RNC Convention did not violate First Amendment

The Republican National Convention in 2004 attracted tons of protesters in the busiest neighborhood in the country: midtown Manhattan at Madison Square Garden. The New York Police Department set up demonstration areas to accommodate the protesters. It also set aside a no-demonstration zone in light of the large volume of pedestrian traffic that might be impeded by leafleting and stationary public assemblies. The Court of Appeals says the no-demonstration zone was legal.

The case is Marcavage v. City of New York, decided on August 2. First Amendment lawyers are familiar with "time, place and manner" cases. Under time, place and manner, the government can regulate speech in a public forum (such as sidewalks and town squares) if the rules are content-neutral, narrowly tailored and leave ample alternatives for speech. Time, place and manner gives the government a lot of leeway to regulate speech, and cases like this usually lose. This one does.

The no-demonstration zone is content-neutral in that it does not discriminate on the basis of political message. The questions here: whether the zone is narrowly tailored and leave open ample means for speech. The no-demonstration zone is narrowly tailored to satisfy a legitimate government interest because the government needed to clear a channel for pedestrians and it also had compelling security needs in light of the large number of people and public officials in the neighborhood, including the President. Taking language from the Tenth Circuit, the Second Circuit (Jacobs, Livingston and Leval) says, "as long as a designed security protocol reduces a plausible and substantial safety risk, it directly and effectively advances a substantial government interest." Plausible security concerns will pass muster under the First Amendment.

The protocol was also narrowly tailored because "[t]he restricted zones were confined to a two-block stretch of Seventh Avenue and were in place only during the four days of the Convention. And the policy was tailored to meet the congestion and security challenges that the Convention presented. The frozen zone was limited to the sidewalk immediately in front of a single side of the Garden. The no-demonstration zone was limited to the opposite sidewalk, which had to be kept unobstructed to accommodate the heavy pedestrian traffic that usually occupies both sides." This reasoning seems limited to large events in New York City, which seems to have a separate set of rules governing public assemblies in light of the many security and other factors that are unique to Manhattan.

The no-demonstration zone also left the plaintiffs and other protesters with ample, or adequate, alternative means to protest. There were demonstration areas set up in the neighborhood, including a stage and sound amplification equipment, which all protesters, including plaintiffs, were able to use. This was in close proximity to the intended audience, the Republican delegates. While plaintiffs argued that the demonstration area was not within "sight and sound" of the intended audience (not a bad argument), the Court of Appeals will not adopt that legal standard as a hard-and-fast rule, and it expressly rejects a Ninth Circuit case that endorses that approach under time, place and manner.

Circuit rejects another intentional/depraved indifference murder habeas distinction

For you habeas corpus junkies, the Second Circuit has ruled once again on the tension between intentional and depraved indifference murder. Cases like this arise when someone is convicted of depraved indifference murder but acquitted of intentional murder, and they argue on appeal that the facts could only support a conviction for intentional murder. The Second Circuit is not going to let these guys go free.

The case is Epps v. Poole, decided on June 21. Writing for the Court, Judge Cabranes says:

This is the fourth in a series of recent cases to come before us challenging New York State second-degree murder convictions on grounds that the evidence presented to the jury could support only a conviction for intentional murder under N.Y. Penal Law § 125.25(1), and not “depraved indifference” murder under § 125.25(2). In each of these cases, the petitioner advanced the somewhat perverse argument that he should be released from state custody because the evidence suggests he is in fact more culpable than the jury had found him to be. In each case, the New York courts rejected that argument, and in each case, we affirmed the dismissal of the petition for habeas corpus, recognizing that it is not our place to tell New York courts that they do not understand evolving New York law.

It all started when Darnell Epps was outside a convenience store. Darnell heard that someone nearby, Derek Warren, called him a "pussy." Darnell and his brother, Darryl, later came after Warren. After a struggle involving these guys, Darrell shot and killed Warren. Darryl pleaded guilty to second degree intentional murder. The jury found Darnell guilty of depraved indifference murder. He argues now that since Darrel's actions were intentional and not reckless, the evidence was insufficient to convict Darnell as an accomplice to depraved indifference murder, and that he was therefore denied a fair trial in violation of the Constitution. Creative argument.

Here's the twist. In 2003, the New York Court of Appeals reversed a depraved indifference murder conviction based on accomplice liability where the attack on the victim was intentional. That case was People v. Hafeez. That case helps Darnell, right? But after losing this argument in the New York appellate courts, Darnell uses that groundbreaking decision to vacate his conviction in this habeas petition in federal court. The Second Circuit rejects the argument. Federal courts defer to state court interpretations of state law. The New York Appellate Division held in 2008 that the Hafeez decision did not completely abrogate prior cases that were in effect when Darnell was convicted. Those cases make Darnell's conviction in state court more justifiable. And that does it for the Second Circuit, which is not going to tell the state courts how to interpret state law. The habeas petition is therefore denied. 

Circuit holds that disabled student's educational plan violated federal law

The Individuals with Disabilities Education Act (IDEA) says that school districts have to fashion an appropriate educational plan for students with learning disabilities. These are complicated cases because the parents have to litigate their disputes at the administrative level and then appeal any adverse decision to the State Educational Commissioner. The federal courts give these experts much deference in assessing the propriety of the individualized educational plans, known as IEP's. But parents do win these cases.

The case is E.S. v. Katonah-Lewisboro School District, a summary order issued on July 6. I co-counseled the appeal with the Law Offices of Peter D. Hoffman. There were two IEP's in this case. The district court agreed with the State Education Commissioner in holding that the student's 2006-07 IEP satisfied the IDEA. But Judge Preska said the 2007-08 IEP violated federal law because it largely mirrored the 2006-07 IEP without taking into account the student's progress over the course of the previous year while attending a private school, where the parents enrolled him after giving up on the defendant's educational services.

Both sides appealed from the district court's ruling. The Court of Appeals (Hall, Parker and Kearse) affirms in all respects. As for the 2007-08 IEP, the Court states,

we have little difficulty concluding that KLSD’s position that B.S. did not progress while at Maplebrook is contrary to a preponderance of the evidence in the record. Consequently, having been designed without regard for any of the progress B.S. did make at Maplebrook, the 2007-2008 IEP was likely to cause B.S. to regress or make only trivial advancement. KLSD thus failed to provide an individualized FAPE as required by the IDEA for the 2007-2008 school year.

Side issue in this case was the attorneys' fees award. Since the parents were able to strike down one of the IEP's, they were prevailing parties and entitled to attorneys' fees. But since they were unable to strike down the other IEP, the question was whether to reduce the fees entitlement by 50 percent. The district court declined to do so, awarding the parents their full attorneys' fees entitlement. The Second Circuit has not resolved a case like this, where the school district wants to sharply cut down the fees under the circumstances. The Court of Appeals says the district court did not abuse its discretion in holding that the successful and unsuccessful claims had overlapping factual and legal claims. The Court reasons,

Here, the district court provided a “clear explanation of its reasons,” i.e., the overlap of the facts necessary to develop Plaintiffs’ successful claim with the facts related to the claim the district court rejected. For both the 2006-2007 and 2007-2008 school years, Plaintiffs’ counsel had to develop facts to show B.S.’s educational background and whether Maplebrook was an appropriate placement. The witnesses for KLSD and the Plaintiffs were nearly the same for both years, and information related to the 2006-2007 IEP was important to determine the sufficiency of what KLSD recommended for the 2007-2008 year. Both claims involved an inter-related, if not single, legal theory—over the course of the two school years, KLSD failed to provide BS with a FAPE as required by the IDEA. We conclude, therefore, that the decision not to reduce the attorney fee award based on the Plaintiffs’ partial success was within the range of permissible decisions for the district court to have made.

Summary judgment reversed in FMLA retaliation case

There are not too many Family Medical Leave Act cases in the Second Circuit. This case clarifies an important issue under FMLA as well as the standards governing tenure denial cases under the employment discrimination laws.

The case is Donnelly v. Greenburgh Central School District, decided on August 10. Donnelly was denied tenure after he took time off under the FMLA. His performance reviews were fine until he took FMLA leave. Afterward, his reviews went south, and they actually criticized him for that time off, even though he did so for legitimate medical reasons and was allowed to do so under the law.

This case raises two issues of importance. First, to sue under the FMLA, you have to work 1,250 hours over a one-year period. Donnelly claims he was denied tenure because he took FMLA leave. But the district court dismissed that claim in holding that Donnelly ahd only worked 1,247 hours, falling three hours short. The trial court arrived at this number by calculating plaintiff's hours under the union contract, which says that “[t]he regular working day for all K-12 teachers shall be the equivalent of up to one (1) hour in excess of the pupil’s regular school day . . . but in no case . . . shall the working day exceed seven (7) hours and fifteen (15) minutes.” The contract notes, however, that teachers have responsibilities that extend beyond the normal school day. Donnelly says that he worked far more than 1,250 hours in light of after-school responsibilities, such as working with students and preparing lesson plans. His performance review even made reference to Donnelly's late hours.

Reversing summary judgment, the Court of Appeals (Lynch, Calabresi and Lohier) says that the jury may find that the practical realities of a teacher's workday bring plaintiff's hours far beyond the 1,250 FMLA minimum. Under the regulations, the employer has the burden of proving FMLA ineligibility if it did not maintain an accurate record of employee hours. On summary judgment, the school district cannot meet its burden in light of plaintiff's affidavit detailing his excess hours. The regulations also say that school districts must prove FMLA ineligibility because full time teachers often work outside the classroom or at home in fulfilling their responsibilities. As the Court of Appeals holds that the union contract is not the sole means to count the plaintiff's hours under the FMLA, this issue is for the jury.

The second issue of importance concerns the standards governing public school tenure denial cases. The district court granted summary judgment, holding that plaintiff could not prove his case under the demanding multi-part test under Zahorik v. Cornell University, 729 F.2d 85 (2d Cir. 1984), which governs university tenure cases. Zahorik takes into account various factors relevant to the university context, including the fact that university tenure decisions are made through a multi-tiered and decentralized review process with many decisionmakers, college professors remain in one department for the rest of their careers, and tenure decisions often involve judgments on someone's arcane scholarship specialties. College tenure cases under Title VII and other discrimination laws are difficult to prove in light of the multi-factor test under Zahorik. But these factors are not relevant to public school tenure decisions, in part, because it is easier under state law to fire a tenured public school teacher than a tenured college professor, public school teachers can be transferred to different departments and even different buildings, public school tenure decisions involve fewer decisionmakers, and the relevant considerations governing public school tenure usually involve only teaching excellence and classroom performance, not scholarship. What it all means is that the Court of Appeals says that Zahorik is not relevant to teacher tenure cases, and the district court was wrong to hold Donnelly to that standard.

Having clarified that public school tenure cases are not controlled by the complex test governing college tenure, the Court of Appeals further holds that Donnelly can win his case because he was qualified for his position (having the appropriate certifications and licensing credentials) and was denied tenure under circumstances creating an inference of retaliation. Not only was he denied tenure shortly after taking FMLA leave, but his teaching evaluations sharply declined in the wake of his medical leave, and the evaluations criticize Donnelly for excessive absences when those absences were permissible under the FMLA. "The District may not, in its efforts to address teacher absenteeism, violate the law with respect to those teachers who miss school for purposes Congress has specifically protected."

Prisoners have no constitutional right to a seatbelt

If you are thinking of committing a felony, be assured that incarceration means that you might suffer physical injuries while prison officials are transporting you in a bus without a seatbelt. There is no recourse for this under the Constitution.

The case is Jabber v. Fischer, decided on June 21. Jabber was incarcerated at Woodbourne Correctional Facility. He was taken to Ulster Correctional Facility for a medical appointment. The bus had no seat belt for the inmates. (The corrections officers did have seat belts). I can see state officials cutting corners on these costs. Do you think they really care if prisoners have seat belts? Probably not.

The sequence of events sounds painful. The Court of Appeals (Winter, Chin and Droney) writes: "During transport, Jabbar was shackled from his wrists to his ankles. The bus made a forceful turn and Jabbar, who had fallen asleep, was thrown from his seat. He hit his head on another seat and was knocked unconscious. He sustained injuries to his face, head, and back."

Jabber sues under the Eighth Amendment, which prohibits cruel and unusual punishment. The claim fails under Rule 12 for failure to state a claim. Inmates are entitled to humane but not comfortable treatment. On which side of the equation does this case fall? Is it humane to forcefully drive a bus with passengers who are not strapped in? Or is this simply a case about discomfort? Every federal court to have resolved this issue seems to have rejected these claims under the Eighth Amendment. So does the Second Circuit, which writes:

the failure to provide a seatbelt is not, in itself, "sufficiently serious" to constitute an Eighth Amendment violation. ... While seatbelts may offer 'reasonable safety' for the general public, on a prison bus their presence could present safety and security concerns. Inmates, even handcuffed or otherwise restrained, could use seatbelts as weapons to harm officers, other passengers, or themselves. A correctional facility's use of vehicles without seatbelts to transport inmates, when based on legitimate penological concerns rather than an intent to punish, is reasonable.

The jailors were slave-drivers

You don't see much in the way of Thirteenth Amendment litigation. That amendment prohibits slavery and involuntary servitude. A resourceful pretrial detainee brought suit against corrections officers who "compelled him to work in the prison laundry under threat of physical restraint and legal process." The Court of Appeals allows his case to proceed.

The case is McGarry v. Pallito, decided on August 3. According to the plaintiff, officers told him that if he did not work in the laundry, they would place him in administrative segregation, which involves lock-up for 23 hours a day and the use of shackles. He would also receive an inmate discipline report if he refused to work, which might affect his release from prison. In addition,

McGarry alleges that he was compelled to work long hours in the prison laundry in hot, unsanitary conditions. He alleges that the bathroom adjacent to the laundry room was bolted shut and that, although he was required to handle other inmates’ soiled clothing, he was not provided with gloves or access to a sink or hand-cleaning products. He further alleges that he was required to work under these conditions on shifts lasting up to fourteen hours per day, three days a week. Finally, he alleges that his work in the laundry caused a painful staph infection in his neck that manifested itself as a series of reoccurring lesions.

Whether these allegations are true or not, no one knows yet. This case comes before the Court of Appeals (Parker, Katzmann and Wesley) under Rule 12. The question is whether the complaint states a claim under the Thirteenth Amendment. It does. Judge Parker writes that "it is well-settled that the term 'involuntary servitude' is not limited to chattel slavery-like conditions. The Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery. Although passed in response to the scourge of American slavery, the Amendment is 'not a declaration in favor of a particular people,' but extends to 'reach[] every race and every individual.'"

To state the legal standard is to say that plaintiff has a cause of action. The Court of Appeals does not even see this a difficult case. "He alleges that his work in the prison laundry was compelled and maintained by the use and threatened use of physical and legal coercion. He supports his allegations with well-pleaded facts that the defendants threatened to send him to 'the hole' if he refused to work and that he would thereby be subjected to 23 hour-per-day administrative confinement and shackles. These allegations
plausibly allege 'threat of physical restraint or physical injury.' ... Likewise, McGarry also plausibly alleges facts supporting his assertion that defendants coerced him through legal process by threatening him with DRs, which are alleged to be taken into consideration when making recommendations for a release date and, therefore, lengthen any period of incarceration."

The defendants invoke qualified immunity because (1) the work program advances a legitimate interest in rehabilitation and (2) they claim there is a housekeeping exception for inmates under the Thirteenth Amendment. This will not fly. Plaintiff is a pretrial detainee, not a convict. The state has no right to rehabilitate pretrial detainees, who are presumed innocent. Second, the complaint does not allege that plaintiff was forced to perform routine housekeeping but hard labor. For now, defendants are not entitled to qualified immunity.

Buffalo firefighter examination withstands disparate impact challenge

The City of Buffalo administered civil service examinations that had a disparate impact on black test-takers, who sued under Title VII claiming that the tests were not sufficiently job-related and therefore illegal because the test was not sufficiently relevant to test-takers in the city. The Court of Appeals sides with the city.

The case is M.O.C.H.A. Society v. City of Buffalo, decided on July 30. Disparate impact has been in the news lately, most notably because the Supreme Court a few years ago ruled in favor of the City of New Haven in Ricci v. Destefano, in a high-profile disparate impact challenge involving minority firefighters. The Buffalo case also involves firefighters, who took the exam in 1998 and 2002. Here's the issue: "can an employer show that promotional examinations having a disparate impact on a protect class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue," that is, the City of Buffalo? Writing for a 2-1 majority, Judge Raggi answers "yes" to that question, stating:

While employer-specific data may make it easier for an employer to carry his burden at the second step of Title VII analysis, such evidence is not required as a matter of law to support a factual finding of job relatedness and business necessity. Where, as here, the district court hears extensive evidence as to how an independent state agency (1) determined, based on empirical, expert, and anecdotal evidence drawn from fire departments across New York and the nation, that the job of fire lieutenant, wherever performed, involves common tasks requiring essentially the same skills, knowledge, abilities, and personal characteristics; and (2) developed a general test based on those findings, we conclude that the district court had sufficient evidence to make a preponderance finding that Buffalo’s use of that test to promote firefighters to the rank of fire lieutenant was job related and consistent with business necessity.

In other words, in creating the 1998 examination, the State Civil Service Department used a thorough job analysis from fire departments around the state, but not the City of Buffalo, which administered the test for its employees. That survey helped the test maker to draft questions for the lieutenant promotional test. For some reason, she was unable to gather too much information from Buffalo firefighters, but she determined that the information from other departments was close enough to create a test for Buffalo promotional candidates. A similar job analysis governed the 2002 test. The Court of Appeals concludes the the district court could deem this test legal under Title VII and that it was relevant to Buffalo firefighters.

Application of the statewide job analysis to Buffalo was not a stab in the dark. Rather, it was based on a sound inference that, because reliable statistics showed that fire lieutenants across the state (and even the nation) shared the same critical tasks requiring the same critical skills, it was more likely than not that the same tasks and skills were critical to the fire lieutenant job in Buffalo. ... Survey data warranting 95% statistical confidence showed that persons across New York with the title of “fire lieutenant” identified the same tasks as critical to their jobs regardless of the size or location of the fire department where they served. Indeed, 90% of surveyed New York fire lieutenants, when asked to rank specified tasks according to their criticality in the performance of the respondents’ jobs, provided virtually identical responses, and those who departed did so only “slightly.” Such data made it highly likely that the job of fire lieutenant, wherever performed in New York, had the same critical tasks and required the same critical skills. Indeed, state survey data showed greater consistency across New York with respect to the position of fire lieutenant than with other high-ranking firefighter positions, where responses were more variable.

Due process extravaganza for City taxi drivers

In this complex procedural due process case, the Court of Appeals finds that the City of New York may have violated the rights of taxi cab drivers in many, many ways. The Court vacates summary judgment in one of the longest and detailed summary orders I have ever seen.

The case is Rothenberg v Daus, decided on June 4. The Second Circuit usually issues brief summary orders when they affirm summary judgment. The orders are a few pages long and do not break new legal ground. This case is eight single-spaced pages with a ton of different holdings. Could've been a published opinion.

Anyway, the City heavily regulates taxi drivers, for good reason. If you think the legal taxi drivers are crazy, imagine the ones who actually lose their taxi licenses. This case concerns due process for suspending and revoking taxicab drivers licenses when, for example, the drivers fail a drug test. If you are a due process junkie, then this case is for you. There are six or seven holdings which vacate summary judgment because the plaintiffs could win at trial.

If you're not a due process junkie, here are some highlights: the drivers did not have fair warning that they could lose their jobs if they fail a drug test. The rules say that drivers licenses "may" be revoked after a hearing if they fail the test. This looks permissive, not mandatory. The district court should consider whether this violates the due process right to fair notice of the consequence of failing the drug test. It is also possible, the Court of Appeals says, that specific rules governing drugs suggest that a failed drug test will not be grounds for revocation without a finding of addiction or on-duty use.

Another flaw in the taxi rules is that a driver can lose his taxi license if he is found to lack "good moral character." This is a vague standard. It all depends on what the driver did wrong. An unpublished city policy says that some convictions automatically cost the driver his taxi license. For example, illegal use of alcohol while driving is a per se terminable offense, and someone testified that "TLC had a zero tolerance policy for convictions" even though state law requires employers to take a variety of factors into account. The Second Circuit says, "The question is thus whether a taxi driver familiar with the rules would reasonably have expected a per se determination that certain convictions rendered him unfit rather than a case-by case
inquiry interpreting good moral character in light of the detailed regulations. We therefore vacate and remand for full consideration of this question in light of the evidence."

Court of Appeals throws out $900,000 wrongful death verdict

The Court of Appeals has thrown out a $900,000 jury verdict in a wrongful death case, ruling that that jury had no basis to find that the Town of East Haven was responsible for the shooting death of a young black man by a police officer. This case generated extensive news coverage in Connecticut, including a good summary of the oral argument in January 2012.

The case is Jones v. Town of East Haven, decided on August 1. This a crushing blow to the mother of the deceased, who filed this action in 1999 and endured two trials before a jury exonerated the police officer on qualified immunity grounds. But the jury accepted plaintiff's municipal liability claim under Monell on the basis that the shooting was part of the town's custom or practice of deliberate indifference toward the rights of blacks.

Here is how Monell claims work. Normally, in a civil rights case under Section 1983, you sue the individual public officer/wrongdoer. You can only sue the municipality if the civil rights violation was part of a policy or custom. This is not easy to prove. No municipality has a formal policy against the rights of minorities. But you can show a custom or policy based on a pattern of rights violations. But again, this is hard to prove, and the plaintiff cannot prove it here, though she tries through a series of incidents. The jury deemed these episodes as part of the town's custom and practice, but the Court of Appeals sees it differently. The verdict is vacated and the case is over.

Jones was shot and killed while driving his car in reverse toward officer Flodquist, who fired shots at the car in the belief that Jones was trying to run him over. Since the jury exonerated Flodquist on qualified immunity grounds, Jones could only prevail on her Monell claim, based on a series of incidents: (1) in 1991, Flodquist apprehended a black male who fled from a moving car during a joyride; (2) in 1996, four East Haven officers beat up and used anti-black slurs against a white suspect who attacked them during an arrest; (3) in 1998, a black female came to believe she was being followed by East Haven officers because of her race; (4) in 2000, the same female was physically abused and subjected to racial slurs at the police station after they booked her on an outstanding warrant; (5) in 1997, some East Haven officers wore T-shirts during a softball game that showed two white suspects on the hood of a police car, with the phrase "Boyz in the Hood."

The Second Circuit says that each of these incidents was insufficient on its own and in the aggregate to show a custom or policy against the rights of black residents. The Court of Appeals reviews them in detail in highlighting the evidentiary deficiencies. For example, the officer in 1991 was justified in apprehending the escapee. The 1998 traffic stop "did nothing for plaintiff's case" as her subjective belief that the officers were pursuing her was mere speculation. The T-shirts may have been disrespectful of blacks (and the police chief did nothing to put a stop to it) but "while the message of the T-shirts was disrespectful of black people, it did not reveal an inclination on the part of the officers to abuse the rights of black people." And the officers may have even had the right to wear shirts like this off-duty. And so on.

The Court of Appeals (Leval, Pooler and Walker) is defensive about this opinion, noting in a footnote that the Justice Department in December 2011 found that the East Haven Police Department had engaged in all kinds of lawbreaking, including "widespread biased policing." But "a federal appellate court makes no assessment of the true facts. Our court has no investigative authority and does not find facts. It reviews only the record created by the parties in the course of trial."

FLSA riddle: domestic worker, or friend of the family?

The Court of Appeals holds that a jury must decide whether a woman who helped in the household was a family friend who could work without pay or a household worker who deserved a salary under the FLSA.

The case is Velez v. Sanchez, decided on July 31. Velez came to the U.S. from Ecuador, where she lived with her mother and a guy who was the biological father of Sanchez, who asked if he knew anyone in Ecuador who could help out around the house in the U.S. Velez left Ecuador as a 16 year-old and moved in with Sanchez in New York. She did all sorts of household work and sued under the Fair Labor Standards Act for back pay. (She also sued under the Alien Tort Claims Act, alleging that Sanchez was abusive, but the Court of Appeals rejects that claim).

The Court of Appeals evidently has not resolved a case like this. So it has to review the standards governing who is a "domestic worker" or simply a member of the household for whom the FLSA does not apply. The district court ruled against Velez because "the economic reality of the situation was that Velez was a part of the family because (1) Velez thought of Sanchez as a sister and valued that relationship; (2) Velez received gifts and opportunities outside of the home; and (3) Velez did not leave the Sanchez household when she did not receive wages." The Court of Appeals (Raggi, Droney and Matsumoto [D.J.]) sees it differently, at least for purposes of summary judgment, stating, "[w]hile these circumstances may support the defendant’s argument that a familial relationship existed, they do not, either individually or in combination, summarily preclude Velez from being an employee under the FLSA as a matter of law."

Judge Droney writes:

the following factors are useful to a district court evaluating a minimum wage claim under the FLSA’s domestic worker provision: (1) the employer’s ability to hire and fire the employee; (2) the method of recruiting or soliciting the employee; (3) the employer’s ability to control the terms of employment, such as hours and duration; (4) the presence of employment records; (5) the expectations or promises of compensation; (6) the flow of benefits from the relationship; and (7) the history and nature of the parties’ relationship aside from the domestic labor. Of course, a court must not apply these factors rigidly, and the list is not all inclusive.

Velez can win the case, the Court of Appeals says, because Sanchez did promise to pay her and provide room and board at the start of the relationship, triggered by Sanchez's search for an employee. Sanchez exercised "considerable control" over Velez's employment, including hours and duties. Moreover, "the evidence that Sanchez claimed to 'own' Velez and could send her back to Ecuador at any time indicates that Sanchez could terminate the relationship at will."