Jailhouse hell-hole gives inmate a constitutional claim

It's been a while since the Court of Appeals resolved a case alleging that poor jail conditions violated the Constitution. These are not easy cases to win because jail is not supposed to be pleasant. But really awful jail conditions can give rise to a lawsuit. This one does.

The case is Walker v. Schult, decided on May 23. At the federal facility in Rye Brook, Walker shared a small cell with six inmates, some of them gang members who throughout the prison could not get along, resulting in fights, friction and creating a "kill or be killed" environment. There were all sorts of problems in the cell. No ladders to reach the top bunk bed, forcing inmates to risk life and limb as they climbed their way up. Cell mates were up all night making noise, leading to "hollering, screaming and sometimes fights," making it impossible for Walker to sleep. The cell itself was unsanitary, requiring toilet cleanings 15-20 times a day because human waste would splatter on the floor. There were not enough cleaning supplies for this. And, the cell was not properly ventilated; in the winter months, Walker froze. In the summer, he roasted.

Does this violate the Eighth Amendment's prohibition against cruel and unusual punishment? The district court threw out the case under Rule 12, but the Court of Appeals (Chin, Wesley and Larimer [D.J.]) reinstates the case. For now, Walker states a claim.

The Eighth Amendment requires prison officials to provide for basic human needs. The claims are assessed in light of "contemporary standards of decency." You can also aggregate poor prison conditions so that, as a whole, they violate the Eighth Amendment. And the plaintiff has to show that prison officials were deliberately indifferent to these conditions. Walker had to live in this overcrowded hell-hole for 28 months. Extreme temperatures in jail can violate the Constitution. So do conditions that prevent enough sleep. Of course, civilized sanitary conditions are also required. And inmates have the right to be free from a substantial risk of serious harm from other inmates. As the lawsuit also alleges that prison officials knew about these problems but did not give a darn, the lawsuit is reinstated and he may proceed to discovery.

Supreme Court provides new test for Title VII retaliation cases

The Supreme Court has ruled 5-4 that Title VII retaliation plaintiffs must show that their protected activity was the "but for"cause of the retaliation. This decision most likely repudiates Second Circuit precedent.

The case is University of Texas Southwestern Medical Center v. Nassar, decided on June 24. Title VII prohibits gender, race, national origin and religious discrimination. It also contains a retaliation provision that says the employer cannot punish an employee for opposing workplace discrimination. Under the Civil Rights Act of 1991, an employee's race or gender cannot be the motivating factor in the adverse personnel decision, i.e., termination, failure to hire, etc., "even though other factors also motivated the practice." But Title VII contains different language in retaliation cases: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practices made an unlawful employment practice by this subchapter ..."

See the difference between the two provisions? The plaintiff can win the underlying discrimination case if her race or gender was a motivating factor in the adverse employment decision. But her retaliation case requires proof that management retaliated "because of" her underlying complaint. Does this distinction mean anything? It does to the Supreme Court. Justice Ginsburg dissents for the Court's liberal wing, which seems to be in a permanent battle with their five conservative colleagues.

Writing for the five conservatives, Justice Kennedy notes that the Court held in 2009 that the Age Discrimination in Employment Act, which prohibits discrimination "because of" age, means that the plaintiff must show that discrimination was the "but for" reason, not simply a motivating or substantial factor. In plain English, "because of" is a more difficult burden of proof. Age must have made the difference. It is not enough to show it was simply a motivating factor among other factors. That interpretation of the ADEA carries over to Title VII retaliation cases, Justice Kennedy now holds.

The Court assumes that Congress intended to have different standards governing Title VII cases, depending on whether the plaintiff sues over status-based discrimination (race, gender, etc.) or retaliation. Really, this case is a good study in statutory interpretation. The Court will not assume that different language in separate portions of Title VII mean the same thing.

Fleshing out the opinion, the Court says that this interpretation has practical significance in light of the large number of retaliation cases that are filed each year. "Lessening the causation standard could also contribute to the filing of frivolous claims, which could siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment." Justice Kennedy gives us a worst-case scenario:

Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. Yet there would be a significant risk of that consequence if respondent’s position were adopted here.

Many law review articles will be written about the above hypothetical. Is a lower standard a true risk for employers? If the employees makes an "unfounded charge of racial, sexual or religious discrimination," the case can be knocked out on a motion for summary judgment. And if management was about to fire the plaintiff before he made the unfounded charge, that is another basis for summary judgment. The hypothetical also assumes that rank-and-file employees would knowingly take advantage of a lower burden of proof. Most non-lawyers have no idea what the legal standard is for these cases.

For those of you who live, work and play in the Second Circuit, the new "but for" retaliation test changes things. In Hicks v. Baines, 593 F.3d 159, 164-165 (2d Cir. 2010), the Court said that a plaintiff can win her retaliation case "by proving that a retaliatory motive played a part in the adverse employment actions even if it was not the sole cause[;] if the employer was motivated by retaliatory animus, Title VII is violated even  if there were objectively valid grounds for the [adverse employment action].'" The "but for" causation test was not the law in the Second Circuit. It is now.

Supreme Court narrowly defines "supervisor" in sexual harassment cases

The Supreme Court holds in a sexual harassment case that an employer is automatically liable for sexual harassment only if the harasser has authority to take tangible action against the victim, i.e., he has the power to hire, fire, promote, transfer or discipline her. This decision repudiates a decision of the Second Circuit that provided a more open-ended definition.

The case is Vance v. Ball State University, decided on June 24. In 1998, the Supreme Court held that the employer is liable for sexual harassment if a supervisor takes a tangible employment action against the harassment victim. The employer is also liable if a supervisor commits the harassment and plaintiff either failed to take advantage of the employer's preventative measures or management exercised reasonable care to prevent and promptly any harassing behavior. The question that makes all the difference is: who is a supervisor? If a "supervisor" commits the harassment, the plaintiff has a better chance to win the case.

Writing for a 5-4 majority, Justice Alito defines "supervisor" in the sexual harassment context. The Second Circuit's definition tracks the EEOC's approach, "which ties supervisor status to the ability to exercise significant direction over another's daily work." (The Second Circuit case is Mack v. Otis Elevator, 326 F.3d 116 (2d Cir. 2003)). The Supreme Court's conservative wing does not like this loose definition. Justice Alito instead says that a "supervisor" in Title VII sexual harassment cases is someone with authority to make tangible employment decisions: hire and fire, promote, demote and assign. It is not enough that a co-worker have some ability to tell others what to do.

The majority says that its strict holding flows from the Court's dual-1998 decisions, Faragher and Ellerth, which "contemplate a unitary category of supervisors, i.e., those employees with the authority to make tangible employment decisions. There is no hint in either decision that the Court had in mind two categories of supervision: first, those who have such authority and, second, those who, although lacking this power, nevertheless have the ability to direct a co-worker's labor to some ill-defined degree." This approach, Justice Alito says, is "easily workable" and is better than the case-by-case approach advocated by the EEOC, which will "frustrate judges and confound jurors." Under this predictable approach, the parties at the outset of litigation will be in a better position to size up the case and be able to explore settlement possibilities. "Where this does not occur, supervisor status will generally be capable of resolution at summary judgment. By contrast, under the approach advocated by [plaintiff] and the EEOC, supervisor status would very often be murky."

Justice Ginsburg dissents on behalf of the four liberal justices. She writes, "the limitation the Court decrees diminishes the force of Faragher and Ellerth, ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation's workplaces. I would follow the EEOC's Guidance and hold that the authority to direct an employee's daily activities establishes supervisory status under Title VII." She further states that the majority "exhibit[s] remarkable resistance to the thrust of our prior decisions,workplace realities, and the EEOC's Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again shuts from sight the 'robust protection against workplace discrimination Congress intended Title VII to secure.'"

Court of Appeals reinstates employment due process case

Very few procedural due process claims survive in federal court. There are may reasons for this, among them the fact that you have to prove that the government deprived you of a liberty or property interest without due process, and it's hard to prove that you had a liberty or property interest in the first place. This pro se plaintiff might have a property interest, so his case is reinstated by the Court of Appeals.

The case is Cancel v. New York City Human Resources Administration, a summary order decided on May 23. The Court of Appeals is reversing Rule 12 and Rule 56 dismissals by way of summary orders more and more these days. One reason for this may be that the cases are not ground-breaking and that the district court simply blew it. This case does not strike me as routine. The plaintiff was offered a position before the potential employer then threw in some belated conditions that seemed too burdensome or somehow unreasonable.

A property interest in the employment context exists when the plaintiff has a legitimate claim of entitlement to a position. The Court of Appeals (Raggi, Droney and Kaplan [D.J.]) says, "Generally, 'there is no constitutionally protected property interest in prospective government employment,' but a written or verbal communication guaranteeing government employment may, in some circumstances, give rise to a such a property interest."

The plaintiff's complaint is enough to make out a due process claim. The Court's reasoning:

Cancel’s amended complaint alleges that, at the end of his January 15, 2009 interview, he was offered a Paralegal Aide position in the Office of Legal Affairs, signed a form accepting it, and “was instructed to return for processing prior to his start date of February 9, 2009.” Only thereafter was Cancel asked to submit certified dispositions of his convictions. Drawing all reasonable inferences in Cancel’s favor, we conclude that these pleadings allege a legitimate claim of entitlement to the Paralegal Aide position, subject only to the completion of ministerial tasks prior to his start date. Insofar as defendants submit that circumstances can be adduced showing otherwise, they may certainly pursue that argument after discovery. But on a review only of the amended complaint, we cannot conclude that Cancel fails as a matter of law to state a procedural due process claim. Accordingly, we reverse that part of the district court’s judgment.

The decision does not tell us why Cancel is suing in the first place. But the district court ruling says that Cancel has a felony record and the job offer was revoked because of that record. In the district court, Cancel did argue that the revocation violated a state law that prohibits job terminations based on certain criminal records. Cancel lost that argument. But Cancel did argue in the Court of Appeals that N.Y. Correct. Law §§ 752 and 753 creates a legally-protected property interest in the paralegal position. The Second Circuit rejects that argument in a footnote, citing precedent that “[T]he fact that state law creates a right to non-discriminatory consideration for a discretionary[appointment] does not create a property interest, any more than does the requirement of acompetitive civil service exam.”

Pro se's Title VII complaint is reinstated

The Court of Appeals has reinstated a pro se plaintiff's discrimination lawsuit. This case is yet another in a recent string of pro se victories in the Second Circuit.

The case is Robinson v. Goulet, a summary order decided on May 17. Plaintiff alleges disparate treatment because of her race and gender. The complaint alleges that she was yelled at because she is a black female and that her work hours were reduced. She was also prohibited from working overtime. White male colleagues did not face similar treatment. The Second Circuit (Walker, Sack and Wesley) says that it is plausible under Rule 12 that plaintiff suffered disparate treatment. The claim is remanded to the district court for discovery.

The Court of Appeals also says that plaintiff should allowed to amend the complaint to plead a retaliation claim. Plaintiff says that her boss yelled and cursed at her when she complained that he was giving white employees favorable treatment. And when she was assigned to work with a co-worker who made sexual advances, her supervisors did not follow up with her and instead accused her of being lazy. The Court says:

Reading her allegations generously, if given the opportunity to amend her complaint, Robinson may be able to plead sufficient facts to demonstrate that she had a reasonable, good-faith belief that Goulet’s and her other co-worker’s actions were unlawful under Title VII, that her employer knew her complaints were about unlawful activity (if she in fact complained of disparate treatment or sexual harassment), that she suffered adverse employment actions, and that these adverse actions were motivated at least in part by retaliatory animus.

Wrong place, wrong time, but no case

Some people sleeping in an apartment were arrested on drug-related charges after the police found multi-colored pills in plastic bags on the kitchen table. It looked like drug dealers were living here, so the plaintiffs were held for constructive possession. They sue for false arrest. The officers win the case on qualified immunity.

The case is Carabello v. City of New York, a summary order decided on May 14. If drugs are in plain sight, the police may presume that those living in the apartment are complicit in the offense. The officers were in the apartment because of a confirmed presence of marijuana plants at the apartment on a prior occasion, and once inside the place, they found heroin in the bedroom. So it was reasonable for the officers to think that the pills were MDMA. After all, there were drugs all over the place to start with.

The Court of Appeals (Sack, Wesley and Carney) agrees that the officers acted reasonable under the circumstances in detaining the plaintiffs. It is possible that the plaintiffs were in the wrong place at the wrong time. Maybe they were just hanging around when the police showed up and saw pills on the table. My guess is that the charges against the plaintiffs were dropped, which is what allowed them to bring this lawsuit (the guilty cannot sue for false arrest). But false arrest case law does not entitle you to damages when the police make a mistake. Under Section 1983, the police are allowed to make a mistake in good faith. The Court sums it up like this:

The undisputed facts establish that plaintiffs were sleeping in a small apartment in which police found drugs on more than one occasion, including at the time of the arrest, and that defendants found suspected MDMA in a common area of that apartment. These circumstances were arguably sufficient to warrant a prudent person to believe that the plaintiffs were “had knowledge of, and exercised dominion and control over,” the suspected contraband.

Employer can retaliate against employee for reporting payroll fraud to Board of Education

If you are a public employee who intends to speak out on a matter of importance, you should speak with an attorney first. You may think you cannot be fired for "doing the right thing." But the law may not protect you, at least not the First Amendment. Consider this free legal advice.

The case is Williams v. Board of Education, a summary order decided on June 4. The plaintiff worked as a clerk at the Riverside Institute of Technology. The school principal told her to alter the payroll documentation to show that substitute teachers were performing special education duties. Plaintiff objected to this because she thought the principal was misappropriating special education money. She reported this attempted malfeasance to her supervisor, her union, the board of education and the City of Buffalo. As a consequence of this whistleblowing, the principal treated her like garbage in the form of various acts of retaliation. She sues under the First Amendment.

What happens when the clerk reports payroll fraud to proper authorities? Can she sue over the retaliation? You have to ask what were her job duties. The answer to that question tells us whether plaintiff engaged in  protected speech. As the district court noted in granting defendants' motion for summary judgment, "plaintiff was responsible for processing and maintaining the payroll documents at Riverside. She objected to certain payroll reporting practices at the school and made her concerns known through internal channels available to her as an employee of the Buffalo Board of Education."

Plaintiff loses the case. Her speech was not protected under the First Amendment. The Supreme Court held in Garcetti v. Ceballos (2006) that the First Amendment does not protect public employee speech if the speech was part of her official job duties. If the speech grows out of the plaintiff's duties, then she is not speaking as a citizen but as an at-will employee. The Second Circuit (Pooler, Livingston and Goldberg [D.J.]) sums it up: "the speech for which Williams claims she was retaliated against owed its existence to her payroll responsibilities as the school clerk. Regardless of her internal motivations, Williams's speech was clearly undertaken in the course of performing her work completing payroll for the school."

Now I have seen it all: witness had a financial stake in the trial's outcome

This is a civil rights claim alleging that the plaintiff was rounded up by the police and taken to a mental health facility against his will. He sued the police for false arrest and excessive force, and the jury awarded him a lot of money: $625,000, which the judge reduced post-trial to $450,000. But the plaintiff withheld from the defendants a shocking secret that could have blown the trial apart. For that reason, the verdict is gone.

The case is Thomas v. City of New York, 09 Civ. 3162 (ALC), 2013 U.S. Dist. LEXIS 78510 (S.D.N.Y. 2013), a Southern District of New York ruling issued on June 4. After the trial ended, the City filed an appeal. That appeal never happened because the City discovered that the plaintiff had engaged in shenanigans that tainted the verdict and warranted a new trial.

Here is what happened. The plaintiff's girlfriend, Marrow, was a witness to this he-said she-said case that turned on witness credibility. Prior to trial, the plaintiff and his girlfriend entered into a contract that promised Marrow 20 percent of the recovery in the event that Thomas won at trial. If Thomas lost at trial, Marrow would pay out 10 percent of the defendants' legal fees. So Marrow had a real financial stake in the outcome of the trial. No one knew about this contract, which is prohibited under New York law, and when Marrow as cross-examined at trial about whether she had a financial interest in the case, she did not tell the jury about the contract, and she was cagey about whether she would benefit from a Thomas trial victory. As Marrow withheld from the jury her true financial stake in the case, Thomas sat there like a lump in the knowledge that Marrow was not playing it straight with the court.

The contract became known to the world when Thomas decided against honoring the contract. Marrow sued Thomas in state court to enforce the contract. The district court ruling provides the transcript from State Supreme Court's colloquy with Thomas about the contract. Thomas got cute about the agreement (he said that Marrow forced him to sign it or she would not testify at trial) before he finally acknowledged the agreement's existence.

The City told the federal judge about the contract and move for a new trial. That motion is granted. This is the kind of serious misconduct that warrants a new trial. Thomas had a duty to disclose the existence of this agreement to the City. It also goes without saying that the jury could have found for the City had it known about the contract. It boiled down to Marrow's credibility, and the City would have argued that her testimony was bought and paid for. The City's lawyers would have destroyed Marrow and Thomas on cross-examination about this illicit contract. Judge Carter writes, "Marrow and Thomas agreed to a contingency arrangement in every sense of the word -- she would benefit only if Thomas was successful and was financial liable if he lost. Her testimony was high stakes for both Thomas's case and her own wallet."

Quitting post-discrimination job because of lengthy commute may still get you back pay damages

A Title VII plaintiff who sues for wrongful discharge has a duty to mitigate damages. That means he has to make reasonable efforts to find comparable work in order to qualify for back pay from the employer that discriminated against him. The policy reason for this is simple: you cannot just sit around and wait to win your lawsuit.

The case Bergerson v. New York State Office of Mental Health, a summary order decided on May 9. The jury found that the Office of Mental Health discriminated against Bergerson. The district court denied her back pay, reasoning that, while plaintiff found a job after leaving OMH, she quit that job for personal reasons. Quitting that job was unreasonable and thus deprived her of any back pay from OMH. The Court of Appeals (Walker, Chin and Restaini [D.J.]) disagrees.

After plaintiff was wrongfully discharged from OMH, she found another position with the St. Lawrence Psychiatric Center (SLPC). But she later resigned that position because the daily commute was too burdensome. The Court of Appeals says that "it took Bergerson two and a half to three hours to travel to SLPC from her home in Rome, New York. Such an onerous commute undoubtedly constitutes unreasonable working conditions, and Bergerson was not obligated to mitigate damages by pursuing or continuing employment located such an unreasonable distance from her home." Quitting the SLPC job did not, by itself, constitute a failure to mitigate damages. The Second Circuit cites a district court case and cases from around the country in reaching this holding. So this is probably the first time this Court has said this.

However, plaintiff still did not mitigate damages, for other reasons. After she left SLPC, plaintiff did not make reasonable efforts to find comparable employment. She took on lesser positions with a bus company and a part-time job with a School for the Deaf. So while this decision provides guidance on when a Title VII plaintiff may quit a subsequent job and still seek back pay, for other reasons, Bergerson still gets nothing in the way of back pay.

Court rejects attempt to "twist" the facts into direct evidence

The Court of Appeals hears a lot of employment discrimination appeals. Direct evidence can get you a trial. This one reminds us that  direct evidence is often elusive and not yours for the asking.

The case is Fischer v. City of New York, a summary order decided on May 17. Fischer was a probationary secretary for a high school in Queens. She was fired in June 2007. She says she was fired because she was white and Jewish, and that she has direct evidence to prove it. If you have direct evidence, the court can dispense with the well-known McDonnell-Douglas burden-shifting model that helps the court decide if circumstantial evidence is enough to prove your case. But to win the case on direct evidence, you need ... direct evidence.

Plaintiff says she has direct evidence because the school principal, Alfred, testified that race "had nothing to do with" her decisions to reprimand or not reprimand employees and that, by way of example, she has "reprimanded Caucasion teachers and Asian teachers. It doesn't have anything to do with it."As the Court of Appeals (Cabranes, Parker and Lohier) puts it. "Fischer attempts to twist this denial that race enters into Alfred's decision-making into an admission that Alfred only disciplines white and Asian teachers. We are not convinced. Neither this statement, nor any other we have found in the record, plausibly provides direct evidence" in support of plaintiff's claim.

When it comes to direct evidence, you know it when you see it. It can take the form of a manager saying outright that he does not promote women. But the Court of Appeals has said that even without a "smoking gun," the plaintiff can get the judge to charge the jury on the more lenient direct evidence model if the plaintiff has "a thick cloud of smoke, which is certainly enough to require [defendant] to 'convince the factfinder that, despite the smoke, there is no fire.'" Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir. 1992).

A good summary of where we stand on this issue is found in a recent Court of Appeals ruling, Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149-150 (2d Cir. 2010):

[T]he more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination. . . . The more a remark evinces a discriminatory state of mind, and the closer the remark's relation to the allegedly discriminatory behavior, the more probative that remark will be.

The district courts in this circuit have developed a standardized approach for applying these concepts to individual cases. In determining whether a remark is probative, they have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). While we caution that none of these factors should be regarded as dispositive, we think this framework will often provide a useful approach to the admission or exclusion of remarks not directly related to the adverse action against the plaintiff, and employ it here.