Monday, April 29, 2013

Employer's "boy's club" atmosphere may violate the New York City Human Rights Law

The Second Circuit has now officially weighed in on the New York City Human Rights Law, which was amended in 2005 to provide greater protection to employees and make it easier for them to win even those discrimination claims that might otherwise fail under Title VII and the New York State Human Rights Law. The Second Circuit vacates summary judgment in a gender discrimination and retaliation claim against a company that ran its office like a men's locker room.

The case is Mihalik v. Credit Agricole Cheuvreux N.A., decided on April 26. After plaintiff was hired, her boss subjected her to boorish behavior, propositioned her sexually and commented on her physical appearance. Co-workers openly watched pornography on their computers and shared it with plaintiff. The Court of Appeals says the workplace was like a "boy's club." After plaintiff objected to this nonsense, her boss excluded her from meetings, berated her in front of co-workers and criticized her work. Plaintiff was fired, allegedly for poor job performance. Her boss was originally going to merely give her a performance warning, but plaintiff was fired "after she asked him, in an allusion to his sexual propositions, 'What's not working out [?] Me and you or me at the company?"

As plaintiff did not sue under the state or federal anti-discrimination laws, the Second Circuit (Chin, Lohier and Droney) only resolves this case under the City Human Rights Law. That allows Judge Chin to summarize the contours of the city law. And if you litigate cases like this, you have to read this decision. In sum, the City Council wanted the amended law to be "construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York Sate civil and human rights laws ... have been so construed." So, the City law must be analyzed independently of state and federal law, and courts must interpret the City law "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible."

Plaintiff's gender discrimination claim therefore goes to a jury. She does not have to prove that management subjected her to a severe or pervasive harassment. While the City law is not a general civility code, the plaintiff instead need only prove that, under the totality of the circumstances, "she has been treated less favorably than other employees because of her gender." The defendants can win by showing that the unfavorable treatment amounted to "petty slights and trivial inconveniences." Under these standards, plaintiff has a legitimate gender discrimination claim. The workplace "objectified" women and, like I said, plaintiff had to work in a "boy's club" among sex-crazed colleagues, one of whom told plaintiff that "male employees should be respected because they were 'male' and thus 'more powerful' than women." Not to mention the two unwanted sexual propositions.

Her retaliation claim also goes to trial. To win, plaintiff has to prove that management's response to her complaints about sexist behavior would deter an employee from complaining again. Plaintiff's boss was not going to fire her until she made reference to the spurned sexual advances. Even prior to her termination, after plaintiff refused to sleep with her boss, he told her in front of colleagues that she "added nothing of value," has "no fucking clue what she was doing" and was "pretty much useless." And five months after plaintiff rejected his sexual advances, she was given a poor performance review and terminated, the first time her supervisor met with her to review her performance. While the Second Circuit says that plaintiff had performance issues, that does not entitle defendant to summary judgment on this record.

The Court of Appeals goes out of its way to emphasize how the City Human Rights Law favors plaintiffs in employment discrimination disputes. Had plaintiff also raised Title VII claims, though, I would guess that she would have survived summary judgment on her federal claims as well. The workplace arguably had severe or pervasive sexual harassment, and the test governing city and federal retaliation claims is substantially identical, as least as to whether management's response would dissuade a reasonable employee from complaining again. Still, this decision puts management on notice that the revised City Human Rights Law is no joke, and that claims that fail under federal law can still go to the jury under the city law.

Friday, April 26, 2013

Speculative retaliation verdict eliminates $350k damages award

After finding that he was denied reinstatement as a firefigher in retaliation for his whistleblowing, a jury awarded Kenneth Monz $350,000 in damages. The district court then granted the fire district's post-trial motion to set aside the verdict for insufficient evidence. The Court of Appeals affirms, and the $350,000 is gone for good.

The case is Monz v. Rocky Point Fire District, a summary order decided on March 26. First Amendment retaliation verdicts are hard to come by these days, mostly because the Supreme Court in its 2006 Garcetti decision eliminated protection for public employees whose speech arises from their official job duties. Even proving that citizen speech is protected under the First Amendment can be a puzzle as well, because it has to be on a matter of public concern, which eliminates trivial and personal grievances from constitutional protection. What dooms this case is the court's finding that, even though Monz engaged in protected speech, his retaliation took place long after that speech and the fire district had a compelling unrelated reason to deny him reinstatement.

The protected speech was Monz's complaint that there was too much drinking at the firehouse and the fire department's "frat-boy" image. I would say this is borderline "public concern" speech under the First Amendment. But that's not my call. The courts said this was citizen speech for which plaintiff could not be terminated.

As the Court of Appeals (Wesley, Droney and Briccetti [D.J.]) sees it, the problem for Monz was actually two problems: first, when he resigned in 2003, the fire chief noted in writing that Monz resigned in "bad standing" because he was not participating in enough fire department events. And, there was a four-year gap between the speech and the reinstatement denial. So the jury's contrary finding that plaintiff's speech about firehouse drinking caused his termination was too speculative. And the very large jury verdict goes down the drain.

An interesting tidbit from the district court opinion shows how Moniz tried to get around the four-year causation gap. He argued that direct evidence established retaliatory intent because some fire department officials gave him the cold shoulder. While plaintiffs sometimes emphasize evidence like this in trying to prove their case, mere dislike is not evidence of retaliatory intent, the district court held, citing cases from around the country, including McCook v. Spriner School District, 44 Fed. Appx. 896 (7th Cir. 2002), Miller v. N. Belle Vernon Borough, 2010 WL 4388069 (W.D. Pa. 2010) and Heffernan v. Straub, 612 F. Supp. 2d 313 (S.D.N.Y. 2009). My guess is that courts think this method of proof is to vague and that courts do not want to read too much into the personality disputes that characterize many a workplace.

Tuesday, April 23, 2013

Arbitration clause takes the fun out of Title VII claim

Goldman Sachs employees sued their employer, alleging a pattern and practice of sex discrimination in promotions, compensation and other terms and conditions of employment. The plaintiffs wanted to bring a class action. The case cannot proceed in court because of an arbitration clause.

The case is Parisi v. Goldman Sachs & Co., decided on March 21. The arbitration clause reads:

any dispute, controversy or claim arising out of or based upon or relating to Employment Related Matters will be finally settled by arbitration in New York City before, and in accordance with the rules . . . of, the New York Stock Exchange, Inc. (“NYSE”) or . . . the National Association of Securities Dealers (“NASD”). If both the NYSE and NASD decline to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association ... 

The agreement defines “employment related matters” as “matters arising out of or relating to or concerning this Agreement, your hire by or employment with the Firm or the termination thereof, or otherwise concerning any rights, obligations or other aspects of your employment relationship in respect of the Firm.” Despite this clause, the district court denied Goldman Sach's motion to remove the case from federal court into arbitration because the agreement's preclusion of class actions would make it impossible to arbitration a Title VII pattern-or-practice claim and it therefore waived a substantive right under Title VII.

Not all Title VII claims can be forced into arbitration (most plaintiffs prefer court and jury trials to arbitration). Arbitration is inappropriate if it effectively precludes a Title VII claim. Plaintiff argues that the arbitration clause is invalid because arbitration would prevent her from vindicating a statutory right. But the Court of Appeals (Parker, Raggi and Lynch) finds that there is no such thing as a substantive right to a pattern-or-practice claim, and the case goes to arbitration.

"Even claims arising under a statute designed to further important social policies may be arbitrated because 'so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.'" Congress has allowed Title VII claims to be arbitrated. The Court of Appeals rejects plaintiff's argument that the arbitration clause prevents her from enforcing a right under Title VII. Pattern-and-practice claims are not freestanding claims but merely a method of proof. Plaintiff can still get relief under the statute, the Second Circuit says, and she have to do it through arbitration.

Monday, April 22, 2013

Section 1983 suit proceeds despite criminal conviction

If you were convicted of a crime in state court, can you bring a lawsuit under Section 1983 for civil rights violations in connection with your conviction? That issue brought about a slugfest in the Second Circuit last week.

The case is Poventud v. City of New York, decided on April 19. Poventud was initially convicted of attempted murder, assault and criminal possession of a weapon in connection with the death of a Bronx cabdriver. As a result of various Brady violations that tainted the state prosecution (in part due to a bad photo lineup), Poventud's conviction was vacated. He then plead guilty to a lesser charge and got time-served. As a free man no longer in custody, he then brought a Section 1983 case challenging the improprieties that led to the attempted murder conviction.

The Supreme Court decided in Heck v. Humphrey, 512 U.S. 477 (1994), that a Section 1983 lawsuit must be dismissed if its success would necessarily undercut the legitimacy of the plaintiff's criminal conviction, unless that conviction was reversed on appeal or called into question by a federal habeas corpus ruling. The idea is that you cannot relitigate in federal court matters that were decided against you in a state criminal proceeding. Citing Heck, the district court dismissed Poventud's Section 1983 claim because his guilty plea was to conduct that "necessarily required his presence at the scene of the crime" and a successful civil rights lawsuit would "logically imply the invalidity" of his guilty plea. Over a strong dissent from Chief Judge Jacobs, the Second Circuit (Calabresi and Sack) reverses and reinstates the case, reaffirming the Court's view that Heck's prohibition against Section 1983 suits in connection with a state court conviction only applies when the plaintiff is in custody at the time of the lawsuit and is able to bring a federal habeas corpus petition that could attack the conviction directly. Since Poventud had no habeas remedy in that he was a free man when he brought this lawsuit, the case is reinstated because it's the only opportunity for him now to challenge the constitutionality of his conviction.

The Second Circuit thinks this is an easy case in light of the Court of Appeals' longstanding interpretation of Heck, and Judge Calabresi says the majority was contemplating issuing a summary order rather than a published, precedential decision. It did not do so because it wanted to address Chief Judge Jacob's "apocalyptic" dissenting opinion. It takes Judge Calabresi more than six pages to respond to Judge Jacob's arguments. As the majority and dissenting opinions fight over the meaning of Supreme Court decisions and the Second Circuit's interpretation of those decisions, this case is a good candidate for the rare en banc ruling.

Thursday, April 18, 2013

Habeas award overturned in burglary conviction

In habeas corpus cases, there really are two U.S. Constitutions. If a state court conviction violates the Constitution in some way, the defendant can get relief in federal court in a habeas petition. But a mere Constitutional violation will not always get the defendant relief. The state court's interpretation of the U.S. Constitution has to be contrary to  -- or an unreasonable application of  -- settled constitutional law, as defined by the Supreme Court, and not the federal courts in that jurisdiction. So the state court can interpret the Constitution differently than the federal courts might, but that incorrect interpretation may not spring the defendant to freedom.

The case is Evans v. Fisher, decided on April 3. The defendant was convicted of burglary. Here is how the district court summarized the issue:

The focus of the petition is the admission at petitioner's trial of an unsworn, highly detailed seven-page hearsay narrative, penned by the state's key trial witness, containing the most damaging evidence and nearly the entirety of the state's case. Admitted for its substance without a limiting instruction, the document was touted by the prosecutor during summation and furnished to the jurors, upon their request, at the outset of deliberations. Petitioner claims that the document's effect, as well as the state's objective in offering it, was essentially to supplant the witness's poor performance on the stand, and to nullify his primary defense, which consisted of a compelling impeachment of that testimony. He argues that he was denied due process because his conviction rests principally on this hearsay rather than the trial testimony.

The trial court granted Evans's habeas corpus petition, concluding that admission of this hearsay document violated his right to a fair trial under the due process clause. The Court of Appeals (Lynch, Lohier and Droney) disagrees. It may seem like Evans got an unfair trial, but the state appellate court affirmed his conviction. No Supreme Court case squarely holds that Evans' conviction violated the Constitution. Some cases are close, but not close enough. It wasn't always this way. The habeas corpus statute was amended in 1996, when Congress wanted to limit prisoner appeals challenging their convictions. Hence the difficult standard applied in this case. State courts are given some leeway in interpreting the U.S. Constitution, even if the federal courts disagree.  

Monday, April 15, 2013

Drug dealers don't have Second Amendment rights

Now that the Supreme Court has recognized a constitutional right under the Second Amendment to own a gun, people are coming out of the woodwork in arguing that their Second Amendment rights were violated in a variety of circumstances. This challenge arises in a criminal prosecution where the guy used a gun in the course of drug trafficking.

The case is United States v. Bryant, decided on April 3. The Second Circuit holds in this case that the Second Amendment does not protect the right to possess a firearm in furtherance of drug trafficking. The case arose when the police executed a search warrant and found money, guns and drugs in the defendant's residence. The defendant told the police that he sold drugs on behalf of his roommate, a drug dealer. He was convicted of possession of a firearm in furtherance of a drug trafficking crime. Prior to sentencing, the Supreme Court handed down District of Columbia v. Heller, which recognized private gun rights under the Second Amendment for the first time. Defendant here cites Heller in trying to vacate his conviction because he needed the gun to protect himself from robbers and that he purchased the firearm legally but never brandished it in public.

Heller is going to spawn tons of constitutional challenges to convictions like this for the next few decades, at least. Lawyers like it when the courts recognize new rights, and this one opens the door for all kinds of new arguments. It may work in some cases, but it will not work here. 

The Supreme Court in Heller said that the Second Amendment does not protect absolute gun rights. The Court specifically said that the government may restrict possession rights for the mentally ill, people who carry them in schools and government buildings and felons. The Court of Appeals (Pooler, Hall and Livingston) interprets Heller to mean that the Second Amendment protects gun ownership for law-abiding, responsible citizens. Other Circuits have therefore held that the Amendment does not protect all self-defense efforts. "Given the Supreme Court’s guidance, our own jurisprudence, and the persuasive authority from our sister circuits that have addressed this issue directly, we hold that the Second Amendment does not protect the unlawful purpose of possessing a firearm in furtherance of a drug trafficking crime and that 18 U.S.C. § 924(c) as applied in this case does not violate the Second Amendment."

Since Bryant engaged in "an illegal home business" -- drug dealing -- the presence of a gun permitted the jury to find that he was no longer a law-abiding citizen. The constitutional challenge to his conviction fails.

Wednesday, April 10, 2013

Bridge toll discount for island municipality is not unconstitutional

These days, with EZ Pass, we whiz through the toll booths with nary a care, except that the state is still taking our money. Not all toll charges are created equal, though. In upstate New York, residents of an island municipality use certain toll bridges at a discount, unlike their neighbors, who pay more. The aggrieved neighbors have sued the Thruway Authority under the constitutional right-to-travel and the Commerce Clause. They lose.

The case is Selevan v. New York State Thruway Authority, decided on March 27. Here is how the Court of Appeals frames the issue: "We consider the constitutionality of a policy of the New York Thruway Authority that provides a toll discount to residents of Grand Island, New York, who must use bridges in order to travel by car between their homes and any location not on Grand Island, while denying the discount to all other motorists." Is this fair? Maybe not, but the Constitution does not always require what's fair.

Grand Island is an island municipality of about 20,000 people. The island is in the Niagara River. It costs a dollar to cross the bridge, but commuters pay 28 cents and Grand Island residents pay nine cents. Plaintiffs argue in this putative class action is that the toll differential violates the right to travel. While the Court of Appeals (Cabranes, Leval and Sack) say that the plaintiffs have standing to challenge the toll differentials, that does not win them the war. Minor restrictions on travel do not implicate the constitutional right to travel. This is not an invidious distinction that requires strict scrutiny. Rather, under the Northwest Airlines test, taken from the case of the same name, 510 U.S. 355 (1994), there is a reasonable basis for the toll distinctions.

The resident discount alleviates the "severe geographic 'isolation' faced by Grand Island residents and the 'residuary effects of nearly 25 million non-resident travelers bisection the island annually." Grand Island residents may have to use the toll several times a day, and while the discount may carry some inequities, that is not enough to strike it down under the Constitution. Nor is the higher toll amount for everyone else excessive; it's only 28 cents and one dollar. (Try crossing the Tappan Zee bridge, which costs $5.00). That money is necessary to maintain the highway.

Tuesday, April 9, 2013

Pro se fellow wins discrimination appeal

The Court of Appeals vacates a Rule 12 dismissal in a discrimination case brought by a pro se plaintiff against an experienced law firm.

The case is Friedman v. Swiss Re America Holding Corp., a summary order decided on February 25. The district court dismissed the case as untimely because, it said, plaintiff filed his federal suit more than 90 days after receiving the EEOC right to sue notice under Title VII. Yes, there is a presumption that right to sue letters are received three days after the date of the notice. But plaintiff said in his sworn complaint that he got the right to sue notice on a date that rebuts the three-day presumption.

Yet, even assuming that he got the right to sue notice when he said he did, Friedman still filed his lawsuit one day after the 90 deadline, that was also no reason to dismiss the lawsuit. The Court of Appeals (Hall, Livingston and Droney) says that the district court should have credited his account of what happened when he tried to file the lawsuit on the right day:

Friedman attested that he had attempted to file his complaint on Friday, March 11, 2011, but was turned away by a clerk who informed him she was unable to assist him because she did not know how to handle the filing of a pro se complaint. Friedman also attested that the clerk eventually offered to stamp the back of the first page of his complaint with a “received” office stamp showing that he had been there on March 11, and then advised him to come back "the following week" to file the complaint when her supervisor would be present. Importantly, Friedman's version of the events was corroborated when the Defendant submitted to the district court a copy of the back of the first page of Friedman's complaint, which bore the district court's March 11 "received" date stamp, albeit crossed out.
Lawyers get heart attacks and night frights over clerk's office disasters like this. But it's OK, man, at least for pro se litigants. The Second Circuit says that "the timeliness of Friedman's complaint depends on whether, as a matter of law, he should be credited for his unsuccessful attempt to file his complaint on March 11. In these particular circumstances, we hold that he should. This Court has held that when a pro se applicant submits a complaint, it 'should be treated as timely, provided the complaint was received by the clerk's office prior to the expiration of the limitations period,' even if it was not filed until a date beyond the limitations period." The case is therefore revived.

Friday, April 5, 2013

Unauthorized envelope search comes up empty for motorist

The police officer pulled over a motorist and he got nosy. The motorist began acting suspiciously when the officer stopped her, and the officer asked if he could look in her car. She allowed him to search the car, and in doing so, the officer found an envelope and decided to open it. Then she filed a lawsuit.

The case is Winfield v. Trottier, decided on March 6. The district court said the search exceeded the scope of plaintiff's authorization. The officer asked her, "There's nothing in there I should know about is there? No guns or money?" The plaintiff replied, "You can look if you want." At this point, the officer was barely able to contain himself: "Oh you don't mind? Do you mind? No large sums of money in there or -- no? Okay." The driver said the officer could look inside the car.

You're probably wondering what was in the envelope. There was a court document addressed to plaintiff's husband. It pertained to his arrest for "possession" and a letter that he had written to the judge. I am not sure where the damages are in this case, but plaintiff says her rights were violated because the officer read the letter in violation of the Fourth Amendment.

You don't have to worry about the damages. The Court of Appeals (Jacobs, Pooler and Hall) does say that the officer exceeded the scope of the search in reading the envelope. While the officer was not just looking for contraband, "Winfield's consent did not arguably extend to Trottier's reading her mail. He did not, for example, get specific consent to search for evidence of extortion by mail or securities fraud," the Court says, partially tongue-in-cheek. (The Court plays it cute throughout the decision). Indeed, the Fourth Amendment protects the right to be secure in your papers. "Reading a person's personal mail is a far greater intrusion than a search for contraband because it can invade a person's thoughts." The officer should not have read the letter.

But, at the time of this malicious and outrageous rights violation, it was not clearly established that the officer could not do this. Here is how the Court phrases the qualified immunity issue:

The right at issue is properly stated as follows: It is a Fourth Amendment violation when a police officer reads a suspect’s private papers, the text of which is not in plain view, while conducting a search authorized solely by the suspect’s generalized consent to search the area in which the papers are found. No prior case in the Second Circuit has so held.
So while the officer violated her rights, no prior case said that this intrusion was unconstitutional. So the officer is immune from liability.

Wednesday, April 3, 2013

Absolut Corruption parody was not corrupt enough under the First Amendment

A Corporal at the Ulster County Jail created an "Absolut Corruption" parody that he showed to a few of his co-workers. The parody's vodka bottle included photos of four Jail supervisors. He suffered retaliation over this and sued under the First Amendment. The Court of Appeals says he has no case.

The case is Singer v. Ferro, decided on April 1. I represented the plaintiffs in this case. The parody is reproduced at the end of the opinion. Under the First Amendment, public workers can speak out on matters of public concern without fear of retaliation. The Supreme Court has said that "A matter of public concern is one that 'relat[es] to any matter of political, social, or other concern to the community.'" Personal grievances don't count. While the Court of Appeals has previously said that allegations of public corruption qualify as public concern speech, Singer's speech does not cut it.

While the Absolut Corruption parody does not detail the nature of Singer's grievances, he testified at deposition about why he did it:

Singer apparently suspected Superintendent Ebel of in some way -- it is not clear how -- favoring Becker and Ferro for a promotion to captain, even though it is undisputed by Singer that another officer was promoted before Becker, and that Ferro was never promoted. Warden Acevedo was corrupt, Singer explained, because he had been arrested sixteen years before for soliciting prostitution. As for Ferro, Singer asserted that he was more likely to grant days off to his friends -- resulting in "payroll discrepancies" -- although Singer could identify no specific instances of such a practice. According to Singer, Ferro was also "famous for womanizing." And Becker allegedly was corrupt for having received a promotion to head the SERT Team despite his lack of supervisory experience. Finally, Singer testified more generally that his own complaints were ignored, and that certain of his colleagues were favored with respect to assignments and discipline.
The Court of Appeals usually asks whether the plaintiff spoke out in good faith. That is not the focus here. The Court instead asks whether the underlying corruption concerns rise to a matter of public concern. I have not seen the Second Circuit do this before. Anyway, although Singer was referring to unsavory acts by four superior officers at a public facility, the Second Circuit says that the "'corrupt practices' referred to by Singer's parody are at best of marginal 'public interest.'" Writing for the Court, Judge Sack explains,

Most – payroll discrepancies, promotions, discipline – are employment-related matters, as Singer acknowledged during his deposition. It is possible that corruption in these respects, if sufficiently egregious or widespread, might implicate the proper stewardship of the public fisc, or the effective operation of important and sensitive public institutions, and thus would constitute matters of public concern. But we do not think that the public has a substantial interest in minor payroll discrepancies amongst corrections department staff, an isolated promotion to middle management, an arrest sixteen years prior, or rumors of womanizing. Each of these falls far from the kind of legitimate and understandable concerns that the public would have as to these public institutions and their missions.
The Court notes its disapproval of the way that Singer was treated after management found out about the parody and it further suggests that his concerns as expressed in the parody were not insignificant. "But under the circumstances of this case, the defendants' alleged overreaction to the parody is not a constitutional issue for this Court to address."

Tuesday, April 2, 2013

Male-on-male sexual harassment case goes to the jury

Here's a sexual harassment case that you don't see every day: a male worker claims a hostile work environment because a male supervisor sexually harassed him. The district court granted summary judgment, but the Court of Appeals rules in the plaintiff's favor and remands for trial.

The case is Barrows v. Seneca Foods Corp., a summary order issued in February 25. Barrow's supervisor, Sanabria, was the kind of guy you'd like to throw an electric toaster into his bathtub. Here is how the district court summarizes the evidence:

Sanabria constantly made vulgar comments, such as “suck my dick,” “come here and give me a blowjob,” and “[f]aggot, get the shovel [and] go out there and clean the drain out,” to [Barrows] and . . . to some, but not all, male employees. . . . The record further indicates that Sanabria grabbed [Barrows’s] testicles on one occasion, during a work-related argument, and that Sanabria hit [Barrows] and other male employees in the crotch on other occasions. There is no indication that Sanabria was homosexual or that he believed [Barrows] was a homosexual.
Men can harass other men in violation of Title VII. Sanabria treated the women better than the men, thereby exposing men to disadvantage terms and conditions of employment. While he directed vulgar comments and gestures toward men, he did not do this to women. This means that the harassment is gender-based.

Defendant argues that plaintiff has no case because he lacks corroborating evidence and "his story is not believable." This argument may work before a jury, but not in the Court of Appeals. The Court says it has doubts about plaintiff's account, and in fact there are some inconsistencies in plaintiff's story, but it's good enough to survive summary judgment. The Court says, "he recounted very specific derogatory and vulgar comments made by Sanabria and testified in detail concerning one incident in which Sanabria grabbed his testicles."

The jury can also find that the harassment was also severe or pervasive; touching an intimate body part can satisfy that test. I think the Court says for the first time in this case that grabbing someone's testicles may be sufficiently severe or pervasive to create a hostile work environment.

Finally, the jury can reject defendant's Faragher defense that plaintiff did not complain about the work environment, denying management an opportunity to deal with the problem. Here's how the Second Circuit wraps up that issue:

Barrows testified that, as required by the defendant’s anti-harassment policy, he complained to his supervisors about Sanabria’s conduct on multiple occasions. Although many of his supervisors deny ever receiving such complaints from Barrows, Bill Wallingford remembers having a conversation with Barrows about his allegations. Wallingford claims that Barrows asked him not to pursue the complaint, but Barrows remembers the conversation differently and testified that Wallingford told him nothing would be done. The actual content of this conversation and the veracity of Barrows’s contention that he had similar conversations with other supervisors are disputed issues of fact that we must leave for the jury.

Monday, April 1, 2013

Ricci doesn't live here

A white male aced the civil service examination in the City of Buffalo for the position of police department captain. He ranked first on the civil service list for the position. That was in late 2006. Then the City began using a new test because the prior one was deemed invalid because it used an outdated job analysis. That new test, adopted after the City decided against using an examination that discriminated on the basis of gender, race and national origin, resulted in the appointment of someone else in 2008. Although plaintiff did not take that test, he sues the City under Title VII.

The case is Maraschiello v. City of Buffalo, decided on February 27. Plaintiff argues that the Supreme Court's decision in Ricci v. DeStefano, 557 U.S. 557 (2009), supports his claim that he was denied the position because the City threw out one test in favor of another that was intended to favor non-while male candidates. Not so, says the Court of Appeals (Wesley, Cabranes and Walker). Ricci is distinguishable, and this case is dismissed.

In Ricci, the Supreme Court said that a municipality needs a "strong basis in evidence" to believe that a civil service test will create disparate impact liability under Title VII. If that happens, the city can abandon the test results and use another examination without fear of disparate treatment liability. Ricci raised a firestorm when the Second Circuit rejected the New Haven firefighters' claim, only to have the Supreme Court reverse at a time when Sonia Sotomayor (who sat on the Ricci panel) was nominated for the Court.

This case differs from Ricci because the City did not reject plaintiff's promotion on the ground that the 2006 test had a racially disparate impact. Rather, the City replaced the 2006 list with the 2008 list "after spending more than a year preparing to revise its assessment methods. Its problem was with the test itself, rather than with a particular set of results." In other words, the generalized overhaul of of departmental promotional requirements is not the kind of race-based decisionmaking that violates Title VII, as interpreted in Ricci.