Parent company is responsible for racial harassment in million dollar verdict case

This racial harassment case against a steel plant near Buffalo provides insight into how the Court of Appeals views damages awards in these cases. The jury awarded the black plaintiff $1.32 million in compensatory damages and $24 million in punitives. That's right, $24 million in punitives. The Court sustains the compensatories but finds the punitives excessive.

The case is Turley v. ISG Lackawanna, Inc., decided on December 17. This is the second racial discrimination case in a year that the Second Circuit has to use the N word and other vulgarities in summarizing the case. The first case was Matusick v. Erie County Water Authority. Both cases are written by Judge Sack, who once again apologizes to the reader about having to use this language in the decision. In this case, plaintiff worked in a "living hell" characterized by every sort of racial harassment you can imagine. Just use your imagination on this one. Management did not properly investigate his complaints about the harassment, and some supervisors had even engaged in the abuse. The question on appeal is not whether the jury properly found liability under the civil rights laws, but whether (1) the judge properly charged the jury; (2) the parent company was properly held responsible and (3) the damages were too high. I'll write up four blog posts on this case, starting with parent-subsidiary liability.

The jury said that Lackawanna and its corporate parent, ArcelorMittal USA, were both liable for the harassment. The Court of Appeals says the record supports that finding. While the law allows a corporation to organize in a way that isolates liabilities among separate entities, they can still be a "single employer" under the employment laws. The Court of Appeals has tread this ground before. Here is the legal standard:

ʺUnder this test, ʹa parent and subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.ʹʺ Although no one factor controls the analysis, the second, ʺcentralized control of labor relations,ʺ is the most significant.

The trial record contains "some evidence" that the parent company was involved in decisions relating to plaintiff's employment "and to the course of harassment." In our world, "some evidence" can be enough to sustain a jury verdict. The parent company negotiated the union contract, which governed the resolution of harassment complaints. The parent company did in fact handle harassment complaints. Summing up, the Circuit says:

A 2007 harassment training seminar explained that all complaints must be reported to the corporate human resources department, and that any settlement that changes anyoneʹs terms of employment must be approved by the corporate office. Employees were directed to report harassment to the ʺAlertline,ʺ a nationwide ʺhotline.ʺ Plant managers repeatedly stated that they were required to check with the corporate legal department in Chicago before providing information to assist police investigations concerning threats against Turley. And Turleyʹs employment ended when the parent company shut down the Lackawanna plant and sold its assets.

I don't see significant overlap among corporate entities over plaintiff's case, but it is enough to sustain the jury's finding that the parent company is partly liable for the harassment as part of a "single employer."

Circuit takes a look at anti-unionization effort at New York hotel

A few months after the housekeeping employees at the Hyatt Hotel considered whether to unionize, the hotel launched a disinformation campaign against the union and subcontracted out its housekeeping work. The subcontractor hired most of the former hotel employees, but the hotel then cancelled the subcontract, fired its old employees and replaced them with new people. The U.S. government filed an unfair labor charge against the hotel, and an administrative law judge ruled against the hotel. When the case reached federal court, the judge refused to dismiss the unfair labor practice petition but also declined to enter an injunction against the hotel.

The case is Paulson v. Remington Lodging & Hospitality, LLC, decided on December 12. This case highlights the usual tactics of an anti-union campaign. Since the ALJ ruled in favor of the union on the merits, we deem the above sequence of events as true for purposes of deciding whether the hotel went too far in opposing the union campaign. The issue for the Court of Appeals (Winter, Parker and Hall) is what to do about this violation. The district court declined to reinstate the employees who were fired; it said that the NLRB had waited too long to seek that relief, and rehiring the employees would displace the replacement employees. The Court of Appeals disagrees.

The Second Circuit writes that "the district court's analysis ... focused heavily on the harm to individual employees (both those discharged and their replacements) caused by the discharges and delayed reinstatements. That analysis, however, failed adequately to account for harm to unionization efforts." First, the Court of Appeals says, "the rights of improperly discharged employees take priority over the rights of those hired to replace them." Second, time was of the essence in replacing the fired employees, as their absence from the workplace "can quickly extinguish organizational efforts and reinforce fears within the workforce concerning the consequences of supporting a unionization campaign." The Court of Appeals relies on extra-Circuit authority for these propositions, so this ruling covers new ground in the Second Circuit.

Without citation to any authority, though, the Court rejects the district court's belief that the fired workers knew they were being offered reinstatement and also knew this case was pending in court, which should have reassured them that they had a right to organize. But the countervailing concern, says Judge Parker, is that litigation is always uncertain and the hotel was challenging the ALJ's findings.

In the end, however, reinstatement is not appropriate because circumstances have changed in the case over time. All the housekeeping employees have been offered reinstatement. Some came back, and some did not, but the ones who did not would probably not return at this point. And a cease and desist order against unfair labor practices remains in place.  

Another look at the independent contractor/employer distinction

The nurses at Harry's Nurses Registry were denied overtime, so they brought a lawsuit. The district court granted them summary judgment, and the nurses won. The Court of Appeals affirms the ruling.

The case is Gayle v. Harry's Nurses Registry, Inc., a summary order issued on December 10. The employer argues that the nurses cannot win because they are not employees. This prompts the Court of Appeals to review once again the rules governing when people are employees or independent contractors. Under the "economic reality test," we consider "(1) the degree of control exercised by the employer over the workers, (2) the workers’ opportunity for profit or loss and their investment in the business, (3) the degree of skill
and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer’s business."

These factors favor the nurses. Harry's -- which places nurses with outside entities -- has economic control over them because nurses are not allowed to contract independently with placements, they cannot subcontract a shift to another nurse, they cannot take partial shift and Harry's fixes their hourly rate. Harry's also has professional control over the nurses because the nursing supervisors monitor the nurses' daily phone calls reporting to shifts, and nursing supervisors can require nurses to attend continuing education to maintain their licenses. The nurses have no opportunity to share in profit and loss of the company. They are simply paid an hourly wage and are paid even if the insurance carrier pays Harry's promptly.

Harry's goes so far as to say that nurses are not integral to the business. The Court of Appeals (Katzmann, Winter and Marrero [D.J.]) will have none of this. "Notwithstanding that 'Nurses' is—literally—Harry’s middle name," the Court notes that placing nurses accounts constitutes Harry’s only income, "The nurses are not just an integral part but the sine qua non of Harry’s business. Considering all these circumstances, we agree with the district court that these nurses are, as a matter of economic reality, employees and not independent contractors of Harry’s."

Nor does the Court like another argument made by the employer, that the nurses were not nurses but home health aides who are not entitled to overtime under the exemption for domestic companionship workers. The employer also says "they do not meet the threshold requirement of having performed overtime 'work.'" The Court says, "This argument does violence to the dictionary definition of work as well as to the dignity of nurses, and we reject it emphatically." 

Second Circuit decides tricky labor law issue (with help from State Court of Appeals)

This is the kind of complex labor law question that prompts the Second Circuit to refer the issues to the State Court of Appeals for a definitive ruling interpreting state law. The issue is whether employee contracts committing parties to pay prevailing waves under a provision of the State Labor Law must specify what particular work the prevailing wages will be paid for.

The case is Ramos v. SimplexGrinnell LP, decided on December 4. The case was argued in September 2013, but this trick question needed clarification from the New York Court of Appeals, which issued a ruling in October 2014.

Plaintiffs did testing and inspection work. They sued because they did not receive prevailing wages for that work, despite the contract to do so. Again, what was the scope of that contract? With guidance from the State Court of Appeals, the Second Circuit (Calabresi, Livingston and Chin) says that, since plaintiffs were "laborers, workmen or mechanics" under state Labor Law, and since the State Department of Labor interprets the statute to mean that testing and inspection falls within that statutory language, plaintiffs may recover the prevailing wages that were denied to them.

The case is remanded to the district court to calculate damages. Plaintiffs argue that they are entitled to damages right now and that remand is not necessary. Not so fast, the Second Circuit says, because the employer challenges the conclusions reached by plaintiff's expert report on how many hours they spent on testing and inspection work as compared with other work.

Here is how IDEA exhaustion works

The federal courts will defer to the expertise of state officials in certain areas, like education, which means plaintiffs must exhaust state remedies before seeking federal relief. This is particularly true when plaintiffs sue over the rights of disabled schoolchildren. This case summarizes the lay of the land.

The case is Stropkay v. Garden City Union Free School District, a summary order issued on December 3. Under the Individuals with Disabilities in Education Act (IDEA), disabled students get an IEP, or an Individualized Educational Plan that the school and the parents create to accommodate the student's learning and other disabilities. Normally, a dissatisfied family challenges the bad IEP at an administrative hearing and, if they lose at the hearing, appeal to the State Educational Department. If that fails, the parents can then sue in federal court. Courts will allow families to proceed straight to federal court without exhausting state administrative procedures in rare circumstances, like when they are challenging systemic problems with the process that the administrative process cannot remedy, or when exhausting state remedies would be futile.

Some of the claims in this case are not appropriate for federal court. The parents raise "grievances related to the education of disabled children," so they must exhaust state remedies, even if they are suing under other civil rights statutes, and not the IDEA. Since plaintiffs did not do that, the question is whether their claims are suitable for federal court. One is, the others are not.

One claim alleges that the school retaliated against plaintiffs for invoking their rights under the disability laws. Since that claim raises a matter "related to the education of disabled children," the parents had to go through the state system first. Another claim also fails because, while plaintiffs said there were systemic violations relating to the need for specific student services, "alleging some students were denied services is not sufficient to allege systemic violations and thus does not exempt plaintiffs from the need to exhaust administrative remedies."

But another claim survives the exhaustion requirement.  Plaintiffs say the district did not comply with the student's IEP requirements. Normally, if the parents don't like the IEP created by the district, they have to exhaust all state remedies. Not when the IEP is in place and the school fails to honor its terms. Under Second Circuit authority, plaintiffs can proceed straight to federal court. A fine line, to be sure.

En banc review in Occupy Wall Street protest case

In August 2014, the Court of Appeals ruled 2-1 in favor of the Occupy Wall Street protesters who got arrested after crossing the Brooklyn Bridge. The Second Circuit rejected the City's Rule 12 motion and allowed the case to proceed to discovery. The full Court of Appeals has now voted to hear the case en banc, and the 2-1 decision is withdrawn. A new decision will issue when the full 13-judge Court hears the case on reargument.

The case is Garcia v. John Doe Officers. The en banc order was issued on December 18. Here is how I covered the case in August:

This case arises from the Occupy Wall Street movement, which sprouted in 2011 in New York City. On October 1, 2011, the protesters marched across the Brooklyn Bridge. They allege that the police allowed them to do this and even led them onto the bridge. The police initially did not prevent the protesters from walking along the roadway. While some officers eventually told the protesters to get on the sidewalk, few protesters heard this command. They were then arrested for disorderly conduct. The plaintiffs sue for false arrest.

The case is Garcia v. Doe, decided on August 21. The crux of the complaint is that "'[p]rior to terminating the march when it was mid‐way across the bridge, the police did not convey that they were going to revoke the actual and apparent permission of the march to proceed,' and that the officers therefore did not have probable cause to arrest them for disorderly conduct." The officers seek qualified immunity, arguing that "an objectively reasonable police officer would not have understood that the presence of police officers on the Bridge constituted implicit permission to the demonstrators to be on the Bridge roadway in contravention of the law." The Court of Appeals (Calabresi, Lynch and Livingston [dissenting]) disagrees, and the lawsuit can proceed.

The Supreme Court held in 1965 that "when officials grant permission to demonstrate in a certain way, then seek to revoke that permission and arrest demonstrators, they must first give 'fair warning.'” The officers try to get around this by arguing that they sanctioned the bridge march so long as the protesters remained on the sidewalk, and that once the protesters spilled into the roadway, they were fair game for arrest; without an implicit invitation to walk along the road, the protesters got what they deserved when the officers arrested them.

The two-judge majority in Garcia said the Complaint stated a cause of action and that the officers were not entitled to qualified immunity at this early stage of the case. Judge Livingston issued a thorough dissent in the case. That dissent, I am sure, will drive the City's arguments this time around. En banc review is quite rare in the Second Circuit. This case must have hit a raw nerve with someone on the Court. And, I must say, I predicted this turn of events, writing in August:

Qualified immunity continues to be a subject of great debate among judges, with many emphasizing that this immunity allows the police and other public officials to do their jobs without the fear of crippling lawsuits. This debate exposes the liberal-conservative judicial divide. I would guess this case is a good candidate for full court, or en banc, review.

Suicide note was in "plain view"

The Court of Appeals grants summary judgment to police officers who seized a suicide note that was in plain view after the entered the house following a 911 call. Even if the police could have handled things better, they are entitled to qualified immunity because they did not violate clearly established law.

The case is Veeder v Nutting, a summary order decided on December 15. Under the "plian view" rule, the police can take things without a warrant if the police ha a right to be there and the items are literally in plain view, i.e., laying on the kitchen table or on the dashboard. the polkice had the right to be in the Veeder home after someone called 911 because of a self-inflicted hanging. A women inside the house told the police that the manila folder she was holding contained the suicide note and that she was going to read it in front of them. "Under the circumstances, defendants had probable cause to believe that the manila folder contained suicide notes," the Court of Appeals (Cabranes, Wesley and Hall) says.

Plaintiffs brought this action because the law generally confers upon you a privacy interest in letters and other sealed packages delivered through the mail. But the Second Circuit cannot identify any clearly established case law that says "the police may not subsequently read a person's private papers, the text of which is not in plain view, that have lawfully been seized under the plain view doctrine." Since the state of the law was not clear at the time, the police get qualified immunity and plaintiffs cannot sue them for damages.

The police could have gotten a warrant, the Court of Appeals says, but that does not affect their entitlement to qualified immunity. Left unsaid in this decision is why the police wanted the note. The district court ruling suggests the police treated the home as a potential crime scene. A quick Google Scholar search turns up a worker's compensation decision relating to this case, suggesting that the suicide grew out of a work-related problem (the decedent worked for the state police). That decision reads:

Decedent had been employed as a forensic scientist for approximately 31 years by the employer. In April 2008, the forensic lab where decedent worked underwent a reaccreditation process, during the course of which an audit uncovered an inconsistency in the fiber proficiency tests that were regularly performed by decedent. An investigation into the issue was commenced by the employer and, over the course of three days, several meetings were held between decedent and his supervisors to discuss the inconsistencies in the test results. After decedent advised his supervisors that he had skipped a step in the fiber test analysis procedure and, therefore, was noncompliant in performing the test, a "nonconforming work inquiry" was initiated by the employer. Decedent subsequently stopped going to work and weeks later, on May 23, 2008, committed suicide.

A few words on qualified immunity, which bear repeating. The Constitution protects certain rights which may be enforced in court, but if the case law interpreting those provisions is not clear at the time of the violation, then the defendants cannot be sued for damages. This means that only the truly incompetent may be sued in Section 1983 cases. Public officials are presumed to know about binding case law (whether they actually do or not). When the state of the law is fuzzy, then these abstract rights get you nowhere in court.

Court of Appeals upholds huge sanctions award against plaintiff

The plaintiff alleged that the police subjected him to excessive force. The plaintiff survived a motion for summary judgment and the case went to trial. The jury found for the police officers. But the case did not end then and there. Arguing that the case was completely frivolous, the City of New York asked the trial court to order that plaintiff pay its attorneys' fees. The trial court granted that motion and the Court of Appeals affirms.

The case is Abeyta v. City of New York, a summary order decided on December 15. For you non-lawyers out there, defendants file summary judgment motions to prevent to trial from taking place. They will argue either that the plaintiff has no evidence or that the case is so one-sided in favor of the defendant that the plaintiff cannot win. The plaintiff's sworn pre-trial testimony alone may entitle him to a trial if he testifies that the police beat the hell out of him without good reason. That does not mean the plaintiff will win at trial or even that the case is not frivolous.

When this case went to trial, the jury returned a verdict for the defendant police officers. The City then moved for attorneys fees. Normally, plaintiffs who lose don't pay the defendants' attorneys fees. Otherwise, plaintiffs would be afraid to bring lawsuits in the fear that if they lose, they could pay a huge attorneys' fees judgment. But if the plaintiff brings a frivolous case, the judge can order him to pay defendants' fees. That's what happened here.

In sustaining the attorneys' fees award, the district court stated:

while it seemed at the summary judgment stage that the officer defendants could have slammed plaintiff’s head against the hood of their squad car, it became clear at trial that there was no credible evidence to support such a claim. Similarly, while it seemed at the summary judgment stage that plaintiff could have suffered life-altering brain injuries as a result of the alleged incident, it became evident at trial that plaintiff could not prove the existence of any injuries proximately caused by the alleged incident. . . .

For example, during plaintiff’s cross-examination, plaintiff conceded that he had continued playing video games, drinking, and going to strip clubs following the alleged incident, wholly undermining his allegation that as a result of the supposed incident, he was unable to work, leave his apartment for long periods of time, watch television, socialize with friends, or use a computer.

The district court therefore ordered the plaintiff to pay the City $211,747.50 in attorneys' fees. As the Court of Appeals does not like to second-guess the district courts on attorneys' fees rulings, this order stands, and plaintiff has to now pay out an enormous amount of money to the City.

No pretext, no case.

Another tutorial from the Court of Appeals tells us what it takes to win an employment discrimination case, and how hard it is to prove that the employer's reason for firing the plaintiff is a pretext.

The case is Mathew v. North Shore Long Island Jewish Health System, Inc., a summary order decided on November 13. Here is how these cases work: the plaintiff has make a prima facie, or initial, showing of discrimination. If the plaintiff was terminated from his job under circumstances creating an inference of discrimination (black plaintiff replaced by a white employee, comparable employees not fired, etc.), the employer then has to articulate a reason for the termination. To win, the plaintiff has to show the articulated reason is a pretext for discrimination. Pretext means a knowingly false reason. The courthouse graveyard is filled with cases where the plaintiff could not prove that management's reason was a pretext.

Plaintiff in this case says he was fired because he suffered from a hernia, in violation of the Family and Medical Leave Act and state law. The hospital says plaintiff falsified his time records. Plaintiff says this is a bogus reason. The Court of Appeals (Katzmann, Hall and Livingston) says No Dice. "We are decidedly not interested in the truth of the allegations against plaintiff when evaluating pretext. Instead, we are interested in what motivated the employer." Since plaintiff actually admitted to submitting inaccurate time records in a meeting with management, "even if this admission was inaccurate or incomplete, it provided the [hospital] with a sound basis to conclude that Mathew had stolen time, and thus undercuts any inference that Mathew's termination was motivated by the hernia."

Plaintiff's second argument is that he was the victim of selective enforcement. But plaintiff "has not identified any other similarly situated employees -- that is, employees who admitted submitting erroneous timesheets -- much less shown that they were treated more leniently than he was." So, no pretext here, which means no discrimination under Second Circuit authority.

No one gets paid for security screenings at Amazon

Have I told you lately how complicated the Fair Labor Standards Act is? It basically says that employees must be paid for the work, and that some employees are eligible for overtime. But it says more than that, as shown by the many court rulings that apply the FSLA in a million different ways. This time around, the Supreme Court asks whether Amazon.com workers can get paid for the 25-minute security checks when they leave the warehouse to ensure they are not stealing anything.

The case is Integrity Staffing Solutions v. Busk, decided by the Supreme Court on December 9. This decision was written by Clarence Thomas. Before you charge the conservatives on the Court with further hostility toward the working man, bear in mind that this was a unanimous ruling. The basic facts are these: "Integrity Staffing required its employees to undergo a security screening before leaving the warehouse at the end of each day. During this screening, employees removed items such as wallets, keys, and belts from their persons and passed through metal detectors."

A word or two about employee theft. When I worked at a supermarket back in high school, there were no security cameras or security checks. One guy happily filled up a shopping cart with stuff and rolled it right out the front door. Another guy clocked in early and then went back outside to the gym to lift weights. Management has gotten smarter over the years. Security cameras are now trained on every cash register in every supermarket and big-box store in America. Employee handbooks tell you in 20 point type that you are an at-will employee who can be fired for any reason or for no reason at all. The Amazon warehouses are mammoth. These security checks are in place to ensure that employees and temp workers do not rob the place blind.

Should the employees be paid for the time they have to pass through security screening to satisfy management that they are not stealing anything? Your initial impression would be that this is compensable time, as this seems a work-related requirement and the employees are not free to leave the workplace until they comply with the security screening.

Under the law, the employees don't have to be paid for "activities which are preliminary to or postliminary to said principal activity or activities.” Do these "postliminary" screenings fall within this exception? The Court says they do. Justice Thomas explains, "An activity is ...integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities."

The employees are not paid for this. "The screenings were not the 'principal activity or activities which [the] employee is employed to perform.' Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” In addition, "The security screenings also were not 'integral and indispensable' to the employees’ duties as warehouse workers."  

What happens in the jury room stays in the jury room

If you try cases, you know that the X factor is the jury. They sit in judgment of the plaintiff, the defendant, the lawyers and probably the judge. We trust the jury to make the right decision, yet we know nothing about these people other than what they reveal during jury selection, which in federal court is often very little. When I talk to clients about what happens at trial, I tell them that eight strangers will decide their case. It may not be a jury of your peers. Take a good look at the next eight people you see on your way home from my office. That is your jury. The guy who works at the gas station has not read a newspaper in years. The woman ahead of you at the traffic light has a Ph.D. The jaywalker only cares about his cellphone. The crossing guard has no time for jury selection and will fake an excuse to get out of it. You get the picture.

The case is Warger v. Shauers, decided by the Supreme Court on December 9. This case examines when a juror's lies during jury selection can get you a new trial. During jury selection, the judge will ask the potential jurors questions about their backgrounds and whether they can decide the case fairly. In this traffic accident case, one juror, Whipple, said she could be fair. After the plaintiff lost at trial, the plaintiff's lawyer heard from a juror who said that Whipple told the other jurors during deliberations "about a motor vehicle collision in which her daughter was at fault for the collision and a man died,” and had “related that if her daughter had been sued, it would have ruined her life.” Whipple was the jury forewoman. If this account was true, then Whipple was not being honest at jury selection. If she mentioned her daughter at jury selection, she probably would not have been picked for the jury.

Plaintiff's lawyer got the juror to sign an affidavit describing what Whipple said during deliberations, arguing that Whipple had lied about her impartiality during jury selection, denying plaintiff a fair trial. However, under Federal Rules of Evidence 606(b), certain juror testimony regarding what occurred in a jury room is inadmissible “[d]uring an inquiry into the validity of a verdict.” This rule disallows plaintiff from seeking a new trial, a unanimous Supreme Court says.

The Court notes that "If a juror was dishonest during voir dire and an honest response would have provided a valid basis to challenge that juror for cause, the verdict must be invalidated." That language does not help plaintiff. "As enacted, Rule 606(b) prohibited the use of any evidence of juror deliberations, subject only to the express exceptions for extraneous information and outside influences." In enacting Rule 606, Congress declined to "permit[] the introduction of evidence of deliberations to show dishonesty during voir dire." Congress wanted jurors to be able to deliberate without fear that their private deliberations (which take place behind closed doors) would be exposed and picked apart. What happens in the jury room stays in the jury room.

Chimpanzees are not people

Corporations may be people, but chimpanzees are not. At least not for purposes of filing a habeas corpus petition.

The case is The Nonhuman Rights Project v. Lavery, a ruling from the Appellate Division Third Department decided on December 4. For the uninitiated, a habeas petition is filed when someone claims that he is being held in custody unconstitutionally. This usually arises in criminal cases. Habeas petitions are what distinguish civilized societies from authoritarian societies. It's like a hail-Mary legal procedure when all else has failed, the last safety valve.

In this case, an animal rights group filed a habeas petition in New York State court, claiming that the chimpanzee, Tommy, was being unlawfully detained by a private business. The court decision does not tell us why the plaintiff wants Tommy away from his captor. To read more about the case from the plaintiff organization and its evidence that Chimpanzees have many human-like traits, click here.

The Third Department frames the issue this way: "This appeal presents the novel question of whether a chimpanzee is a 'person' entitled to the rights and protections afforded by a writ of habeas corpus." After noting that habeas procedures only protect "persons," the court finds a definition of "person" from legal scholarship and Black's Law Dictionary. But that kind of research is window dressing. There is no way the plaintiff will win this. Courts are not going to extend to animals the protections enjoyed by humans. The court notes that other courts have rejected this argument, and there is no case in favor of plaintiff's position.

Anyway, 'legal personhood has been defined in terms of both rights and duties," emphasis on the word "duties." "Associations of human beings, such as corporations and municipal entities, may be considered legal persons, because they too bear legal duties in exchange for their legal rights." So here's how the court wraps it up:

Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights – such as the fundamental right to liberty protected by the writ of habeas corpus – that have been afforded to human beings.

So, Chimpanzees are not people for purposes of a habeas corpus petition. Like I said (and as the Third Department states in this case), corporations are treated as people under the law in certain instances. If Tommy the chimpanzee makes a campaign contribution, would he then count as a person?

Rats on a plane!

When is a psychological quirk a disability under the Americans with Disabilities Act? In this case, the Court of Appeals provides some guidance.

The case is Giambattista v. American Airlines, a summary order decided on November 25. Plaintiff worked as a stewardess. Her co-workers accused her of smuggling her pet rat onto an airplane, pushing the false perception that she "had a mental disability because she was unable to be away from her pet rats for any period of time." These accusations resulted in embarrassing searches and interrogations by federal authorities. Co-workers gossiped that plaintiff was "crazy" and had to be taken "away in white coats."

This case got some publicity. Her lawyer said, "Every time she came into an airport they basically stripped her ... "If she had had a rat on her, they would have found it. They never did. Enough already." The district court quotes from the complaint that "The Plaintiff alleges that she subsequently developed a debilitating fear and anxiety of being detained overseas and was unable to work on international flights, causing her lost income."

Under the ADA, you can argue that management mistreated you because of a perceived disability. The perceived disability here is that everyone thought plaintiff was "crazy" because of the pet rat. But this case fails under Rule 12, and the Court of Appeals (Pooler, Parker and Wesley) says plaintiff cannot satisfy the requirement under Iqbal that the complaint allege a plausible claim. The Court reasons it out like this:

Although Giambattista claims that she was subjected to discrimination and harassment due to the false perception that she “had a mental disability because she was unable to be away from her pet rats for any period of time,” Compl. ¶ 2, we need not credit “[g]eneral, conclusory allegations . . . when they are belied by more specific allegations of the complaint.” The complaint explicitly alleges that Giambattista was subjected to a number of unpleasant encounters all “as a result of” the false reports filed by two of her fellow flight attendants. Compl. ¶ 26. Similarly, under the circumstances alleged, the stray comments of her co-workers fail to raise a reasonable inference that American Airlines discriminated against her on the basis of a perceived disability. The complaint itself asserts that these comments were motivated solely by the rumors regarding conduct that Giambattista concedes would be illegal if established.

Plaintiff is a prevailing party but gets reduced attorneys' fees in IDEA case

One of the reasons we can file civil rights cases is that the plaintiff's lawyer recovers his legal fees if he wins the case. Most civil rights plaintiffs cannot afford an attorney, and if they can pay for some legal services, they cannot afford to cover all legal expenses, which can exceed $100,000. So the questions remain in many cases: when is the plaintiff a prevailing party, and if she is one, how much money does she (or her lawyer) get?

The case is K.L. v. Warwick Valley School District, a summary order decided on November 25. The parents sued under the Individuals with Disabilities in Education Act, which ensures that disabled students get the educational services they need. These time-intensive cases cost a fortune. When the case settled, the parents moved for attorneys' fees, and the district objected. The trial court awarded the fees, and the Court of Appeals (Pooler, Parker and Wesley) affirms.

“[A] plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Pursuant to the parties’ settlement agreement, Warwick Valley provided K.L.’s child summer 2012 ESY services, which it had originally sought to deny and not all of which it was legally obligated to provide pursuant to the pendency provisions of the IDEA and New York State Law. 20 U.S.C. § 1415(j); 8 N.Y.C.R.R. § 200.5(m). This relief modified Warwick Valley’s behavior in a way that benefitted K.L. and provided him with a portion of the relief sought in his hearing request. This provides a sufficient basis for prevailing party status.

Being a prevailing party does not mean you get all your money. The court then has to decide how much legal fees the defendant has to fork over. Appellate courts don't like to second-guess trial court attorneys' fees rulings, and this ruling reflects that deference. "Although the relief obtained by K.L. was comparatively small, he achieved a primary goal in bringing these proceedings: ensuring full summer 2012 ESY for his child. The mere fact that relief is small in nature does not imply that a plaintiff’s success is de minimis."

Plaintiff also takes up an appeal, arguing that the district court did not award enough in fees. The Court of Appeals rejects the argument that the hourly rate was too low. Although experienced attorneys in the Southern District get $300 to $450 per hour in complicated educational cases, the district court awarded plaintiff's attorney $250 per hour. "Taking into account the straightforward nature of this case, which involved few disputed issues and a prompt settlement prior to any administrative proceedings, the district court deemed an hourly rate of $250 appropriate."

A few other rulings: first the Court of Appeals says the district court did not abuse its discretion in reducing the fees for limited success. "The district court appropriately concluded that the settlement agreement only afforded K.L. a portion of the relief originally sought in the hearing request, with K.L. conceding several of his original demands in order to settle the proceedings."

In addition, while plaintiffs normally get fees for the time spent drafting the attorneys' fees petition, the district court did not abuse its discretion in awarding plaintiffs no fees for this petition. This ruling is somewhat remarkable, as plaintiffs usually get at least some money for this work. Not this case. "'If the fee claims are exorbitant or the time devoted to presenting them is unnecessarily high, the judge may refuse further compensation or grant it sparingly.' Here, the district court concluded that (1) thirty hours was an excessive hourly total for litigating a straightforward fee petition, and (2) the underlying fee request was exorbitant. In light of our previous statement that a district court “may refuse further compensation,' in such circumstances, we find no error in the decision to award no fees for the fee petition phase." In other words, plaintiff is punished for asking for too much money.

Supreme Court says complaints do not have to cite proper legal theory

Sometimes the Supreme Court issues brief rulings that no one seems to know about. But these rulings can govern our lives for years to come. If you litigate cases in federal court, this one is worth reading. It clarifies what the plaintiff can omit from the complaint.

The case is Johnson v,. City of Shelby, a per curium ruling issued on November 10. This case tells us about the new pleading standards set by the Supreme Court in the Iqbal ruling from 2009, which held that plaintiffs must plead a plausible claim in order to survive a motion to dismiss. In this case, two police officers sued the City for wrongful discharge, claiming their termination violated the Due Process Clause of the Fourteenth Amendment. Normally, these claims are brought under 42 USC sec. 1983, the federal civil rights statute that plaintiffs invoke to enforce constitutional rights. The problem is that the complaint does not actually say that plaintiffs are suing under Section 1983. So the district court dismissed the case outright.

Dismissing the case was wrong, the Supreme Court says. Federal pleading rules only require the plaintiff to provide "a short and plain statement of the claiming showing that the pleader is entitled to relief." The Court has said in the past that heightened pleading requirements do not govern civil rights cases. While Iqbal requires the plaintiff to allege a plausible claim, that is a factual requirement, in contrast to this case, where the plaintiff did not cite the proper statute.

You don't have to cite the statute governing your case. The complaint does not have to allege the proper legal theory, only the facts that entitle you to relief. As the Court tells us in this case, the federal rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Various practice guides have always supported this position,and the Supreme Court now adopts it.

Supreme Court grants qualified immunity in "knock and talk" police case

Are you aware of the "knock and talk' principle under Section 1983? This case alleges that the police violated the knock and talk rule by entering private property without a warrant and questioning the homeowners away from an area where visitors are normally expected to go. The property owners prevailed in the Third Circuit, but the Supreme Court reverses and grants the police officers qualified immunity.

The case is Carroll v. Carmen, decided on November 10. The Supreme Court issued this ruling without oral argument. The police heard that some guy had stolen a car and two loaded guns. and that he was the Carmen household. So they ventured into the property and wound up near a shed, into the backyard, where they asked the Carmens about the suspected felon. Under the knock and talk rule, the police can knock on private property without a warrant to ask questions, just as a private citizen might. Ruling in the Carmens' favor, the Third Circuit held that "the 'knock and talk' exception requires that police officers begin their encounter at the front door, where they have an implied invitation to go."

Whatever joy the Carmens felt in prevailing at the Third Circuit has been stripped away from them like that ground ball through Bill Buckner's legs during the 1986 World Series. The Supreme Court grants the officers qualified immunity, and the Carmens lose.

Qualified immunity applies when the civil rights violation was not clearly-established at the time of the incident. The law in this area was not clearly-established when the Carmens suffered the indignity of the police stepping deep into their property. Third Circuit precedent does not provide much guidance in this area. One case, Marasco, "held that an unsuccessful 'knock and talk' at the front door does not automatically allow officers to go onto other parts of the property. It did not hold, however, that knocking on the front door is required before officers go onto other parts of the property that are open to visitors." So, Marasco (and rulings from around the country) is not on point, the Supreme Court says. And if the Third Circuit precedent is not on point, then the officers did not have notice that they were violating the Constitution when they ventured onto the Carmens' property. Qualified immunity attaches, and the police win.

Interesting side note to this case. The Supreme Court has never identified the body of case law that governs the qualified immunity inquiry. It declines to do so here. It decides the case by assuming "for the sake argument that a controlling circuit precedent could constitute clearly established federal law" in the qualified immunity context. Might the Court someday decide that only Supreme Court precedent is relevant in deciding if the law is clearly-established? If that happens, it will probably expand qualified immunity for defendants, as there are far fewer Supreme Court rulings to choose from than Circuit court precedents. Something to ponder.

Multi-faceted sexual harassment claim loses

Employers are supposed to take sexual harassment complaints seriously. In this case, the plaintiff claimed she was sexually assaulted at work. Management brought charges against the alleged harasser. The arbitrator sided with the alleged harasser. So what happens to plaintiff's case?

The case is Burns v. City of Utica, a summary order decided on November 7. Not all sexual harassment in the workplace is actionable. Not against the employer, anyway. The employer is only liable under Title VII if it ignores or mishandles the complaint. This means that even the most disgusting harassment imaginable will not give rise to a lawsuit if the employer has a good HR department or stops everything and deals with the problem right away.

This case does not get out of the starting gate. The district court dismissed the case under Rule 12, and the Court of Appeals (Winter, Walker and Cabranes) affirms. Plaintiff worked for the fire department. The employer suspended the harasser with pay, but he was reinstated after the arbitrator said the City had failed to prove its case against him. (The City also challenged her work-related disability claim and it prevailed against her at a separate administrative hearing).

Plaintiff tries to get around the arbitrator's ruling by alleging that the disciplinary hearing was irreparably flawed by various conflicts of interest, i.e., the City's representative at the disciplinary hearing had it in for her and had an incentive to lose that proceeding. This kind of conspiracy-theory will not usually work in federal court, and it does not work here. As the Court of Appeals says, ultimately, "both the disability and disciplinary proceedings were ultimately decided by neutral arbitrators." While "Burns alleges at length that the arbitrators disregarded the evidence in both cases, ... this action is not the forum in which to challenge arbitration decisions."

Burns also sues for retaliation under Title VII. That claim fails also, because plaintiff cannot show an adverse employment action. While she claims she was directed to return to work under unsuitable conditions, resulting in her taking unpaid leave from the Fire Department, she "was required to return to work at her previous position only after an independent arbitrator determined that she was not disabled. That decision was not an adverse employment action under Title VII."

Finally, plaintiff sues the harasser, Knapp, under Section 1983, which prohibits sexual harassment by government employees acting under color of state law. The problem here is that, while Knapp was a government employee, he did not abuse his government employment in harassing plaintiff. Rather, the "alleged sexual assault ... was palpably a personal pursuit entirely unrelated to his duties as a firefighter."

ADA plaintiff has standing to sue Amtrak

The Americans with Disabilities Act has a loophole: unless the government is filing the lawsuit, a litigant cannot sue a private entity for damages, only injunctive relief. The problem is that, to obtain an injunction, you have to show that you will be subjected to the ADA violation again. That is harder than it sounds. What if you have no intention of returning to the scene of your humiliation?

The case is Pincus v. National Railroad Transportation Corp, a summary order decided on October 28. Pincus took an Amtrak train from Florida, to New York. She sues over "Amtrak’s failure to have a wheelchair and attendant waiting for her despite her prior notification of the need for these provisions; supplying her with a wheelchair that was too small; and leaving her unattended in a wheelchair she could not operate." The Court of Appeals (Cabranes, Straub and Livingston) notes that "The injunctive relief sought would require Amtrak to provide wheelchairs and wheelchair assistance to passengers who have mobility-related disabilities."

The district court dismissed the case under Rule 12, holding that the Complaint does not show that she intended to use Amtrak again. Without that intent to use this service, plaintiff cannot seek an injunction. The Court of Appeals reinstates the case."Pincus’s professed intent to use Amtrak again is sufficient to establish standing. The second amended class action complaint alleges that Pincus 'desires to utilize Amtrak rail stations not only to avail herself of the goods and services available at the rail stations,' but also in the capacity of a tester 'to assure herself that Amtrak is in compliance with the Rehabilitation Act so that she and others similarly situated will have full and equal enjoyment of the property without fear of discrimination.' The complaint further alleges that Amtrak’s 'discriminatory practices also prevent Pincus from returning to the property to enjoy the goods and services available to the public.'"

As "deterrence [is] a cognizable injury on a disability claim," the Court says. Disability plaintifffs “'need not attempt to overcome an obvious barrier,' so long as she pleads sufficient facts to 'create a reasonable inference that [s]he would frequent the [public accommodation] were the violation remedied.'”

Police unions cannot intervene in now-settled stop-and-frisk litigation

The much-publicized stop-and-frisk case that raised questions about racial profiling and led to the removal of a federal judge from the case is still kicking around. While New York City has since settled the case, the police unions want to revive the case in the interests of protecting the reputation of its members who, the district court found, had stopped and frisked minority residents for no reason.

The case is Floyd v. City of New York, decided on October 31, exactly one year after the Court of Appeals kicked Judge Scheindlin off the case, holding that her public comments and case-management practices conveyed possible bias against the police. In fact, she had written an extensive decision in finding that the City had violated the Constitution in frisking people without reasonable suspicion. The decision to remove Judge Scheindlin from the case triggered much controversy, but it was mooted when Mayor DiBlasio was sworn in and settled the case.

When that happened the public thought the case was over. But not for the police union, which objected to Judge Scheindlin's ruling. But the Court of Appeals (Parker, Cabranes and Walker) objects to the union's maneuvering. Not only is the unions' motion to intervene untimely, but they do not assert an interest that the law seeks to protect. The unions should have known when the case was unfolding that they had an interest in the case. They did not attempt to intervene until now. Beyond that, the motions to intervene do not satisfy Federal Rule 24. The unions' asserted interests in the case -- to protect officer reputations -- are too insubstantial and indirect to be legally protectable. In addition, the Court of Appeals says,

Whatever the merit of the unions’ claim that Judge Scheindlin’s rulings were incorrectly premised “upon statistical evidence purporting to place 4.4 million stops at issue,” allowing the unions to revive a now‐settled dispute by intervening at this late juncture would substantially prejudice the existing parties and unduly encroach upon the City’s inherent discretion to settle a dispute against it. In other words, granting the unions’ motions in the wake of the November 2013 mayoral election would essentially condone a collateral attack on the democratic process and could erode the legitimacy of decisions made by the democratically‐elected representatives of the people."

Gun search gone awry gets family a new trial

This case is a real eye-opener. The police entered someone's property looking for a gun that did not exist and shot and killed the family dog in front of a 12 year-old girl. The case went to trial and the police won. The family gets a new trial.

The case is Harris v. O'Hare, decided on October 30. The City of Hartford Police made it a priority to rid the neighborhood of guns. When they arrested a heroin user who had violated his parole for possessing drugs, the user (who was unknown to the police) told them they could find a gun in an abandoned car at a specific address. Of course, this tip would gain the heroin guy some leniency in his parole violation proceeding. But the police though the tip was reliable because the arrestee was unlikely to lie and make his bad situation worse by misleading the police. So the police entered the property described by this informer and found no drugs. But when the growling family dog was running around in this fenced-in property, the officer shot and killed it in front of a girl who loved the dog. At trial, the jury ruled for the police in the belief that exigent circumstances allowed them to enter the property without a warrant.

The Court of Appeals (Pooler, Parker and Wesley) issue two holdings here. First, the police had probable cause to believe there might be guns on the property. The informant belonged to a violent street gang in this dangerous neighborhood, so the police deemed him reliable on where they could find guns. The informant was also in a position of self-preservation such that "it would be detrimental for him to provide us false information." And, this is how the police often found illegal guns. It may sound counterintuitive, but this violent heroin user was more likely to tell the truth under the circumstances, the Court says.

But the Court also says the police had no right to enter the property without a warrant. The Second Circuit says the jury had no basis to find that exigent circumstances justified the warrantless entry. Exigent circumstances are a narrow exception to the warrant requirement. Here are some general guidelines:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause . . . to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.

While the officers argued that Hartford is a violent, gun--ridden city, that justification is not sufficiently specific to this particular case to allow the police to enter the property without a warrant.The Court reasons:

Though genuinely held, the officers’ concerns about getting illegal guns off of the streets of Hartford are not pertinent to an exigency analysis. This is because testimony about how fast “guns move” in Hartford, or about the violent gangs in that part of the city, are not specific facts or evidence particular to this case. Rather, they are generalized facts about the city and about the nature of gun trafficking. Such general knowledge, without more, cannot support a finding of exigency. The exigency inquiry “turns on the district court’s examination of the totality of circumstances confronting law enforcement agents in the particular case.”

Contractor can sue City of New London for First Amendment retaliation

This First Amendment retaliation case explores when a City can retaliate against a contractor who filed a prior federal lawsuit against the City. From time to time, the Court of Appeals determines when the First Amendment prohibits the government from punishing someone for bringing a lawsuit. The plaintiffs in cases like that usually lose. This plaintiff wins.

The case is Golodner v. Berliner, decided on October 27. Plaintiff contracted with the City to provide security in several buildings. At the same time, he sued the City because its police officers had arrested him without probable cause. His lawsuit alleged that, under a "dual arrest" policy, officers were improperly trained in neighbor disputes to arrest the complainant and the offender. His lawsuit also alleged that the City officers hated him and ignored his complaints against his neighbors. After the lawsuit was filed, the City contracted with someone else for the security services. He claims in the present lawsuit that the City changed contractors in retaliation for the first lawsuit.

Plaintiff can win the case if the first lawsuit raised a matter of public concern. If the first lawsuit raised a matter entirely personal to plaintiff, then it was not protected activity. But the first case raised issues surrounding systemic police misconduct in executing bad police arrest policies which might violate the Constitution. For that reason, the first lawsuit raised a matter of public concern. Not only does the dual-arrest policy look questionable, but plaintiff alleged in the first lawsuit that the City officers made his life a living hell because he had complained about a City officer.

Defendants raise a novel argument. Noting that the Supreme Court's principal case on First Amendment retaliation, Connick v. Myers, requires courts to consider the whole record in determining if the plaintiff engaged in protected speech, defendants say that, in viewing the entire record, the first lawsuit did not raise a matter of public concern because that case was ultimately dismissed on summary judgment, and in that case plaintiff did not challenge the dual-arrest policy in post-complaint filings. That does not matter, the Second Circuit (Hall, Straub and Droney) says. When the City allegedly retaliated against plaintiff, the only speech that plaintiff had engaged in was the lawsuit, which on its face did raise matters of public concern. "The practical effect of adopting defendants' position ... would be to impute to government actors -- retroactively -- knowledge of developments bearing on the characterization of speech that postdate the actors' alleged retaliation. Neither the law nor common sense supports such an approach[.]" The Second Circuit adds, "Courts properly determine whether the speech at issue touches on a matter of public concern by reviewing only the speech cognizable by the alleged offenders prior to and at the moment of the alleged violation."

No qualified immunity for the City defendants in light of clearly-established law that the government cannot retaliate against someone, including contractors, for engaging in free speech. For the qualified immunity junkies out there, this case offers a nice discussion (including a reference to Goldilocks) of how much specificity prior cases need on the facts to place government officials on notice that they are violating clearly-established law in subjecting someone to an adverse action.

Plaintiffs can sue for employment discrimination under Section 1981

Most employment discrimination cases are brought under Title VII of the Civil Rights Act of 1964, which Congress undoubtedly intended to cover these cases. But Section 1981, which prohibits racial discrimination in the making and enforcement of contracts, can also predicate an employment discrimination case.

The case is Leung v. New York University, a summary order decided on October 14. Back in the late 1990s, some federal judges began ruling that plaintiffs cannot bring employment discrimination claims under Section 1981 unless they had an employment contract. The Second Circuit put that argument to rest in 2000, ruling in Lauture v. IBM (a case that I briefed) that even at-will employees have a contract (albeit unwritten) and can sue under that statute.

It is 2014, and the Court of Appeals reminds us that employment plaintiffs may sue under Section 1981. The district court ruled that "Section 1981 is not a substitute for an employment discrimination claim." That was wrong. The Court of Appeals (Pooler, Raggi and Hall) says that "Congress intended Section 1981 to apply to employment discrimination and Section 1981 provides a vehicle for every employee to remedy racial discrimination in the workplace." That fact that plaintiff lacks a written contract does not prevents him from bringing a case.

So here are the options for a racial discrimination plaintiff who wants to sue in federal court. You can sue under Section 1981 and proceed directly to court. You can also sue under Title VII, the principle employment discrimination statute, which requires that you first proceed in the EEOC and allow them to investigate for six months before you get a "right to sue" letter that lets you then sue in court. The advantage under Title VII is that the EEOC process gives you a glimpse of what the employer will say in court, as it must file a position paper that will typically contain exhibits in support of the employer's decision. If you want to sue right away but also want to take advantage of EEOC process, then file the Section 1981 and EEOC charge simultaneously. When the right-to-sue letter arrives six months later, then amend the Complaint to assert a Title VII action also.

To Heck with a habeas petition, I'm suing under Section 1983!

Section 1983 is the federal civil rights statute that allows you to recover damages for the violation of your civil rights. In this case, a guy was convicted in state court and then filed suit in federal court, claiming his rights were violated at trial. He did this instead of filing a habeas corpus petition, which convicts normally pursue in upsetting unconstitutional state court convictions. This tactic does not fly.

The case is Teichman v. State of New York, decided on October 20. In challenging his criminal conviction through a civil rights action, the plaintiff cannot state a claim. Section 1983 offers plaintiffs all sorts of damages, including punitives, injunctive relief, pain and suffering and attorneys fees. But it does not recognize a claim of innocence, which is essentially what plaintiff is trying to do. The Court of Appeals has held in the past that "where a plaintiff seeks simply a declaration that there was a past injury, but claims no damages or injunction against future behavior, there is no Section 1983 claim because there is no case or controversy." Under this principle, the Second Circuit (Lynch, Calabresi and Livingston) rejects the case.

For Section 1983 junkies, this case is notable for two concurring opinions, by Judges Livingston and Calabresi, who ruminate on how the Supreme Court's ruling in Heck v. Humphrey (1994) might be implicated in cases like this. Heck stands for the proposition that you cannot bring a civil action that, if successful, would necessarily imply the invalidate of a state court criminal conviction. Heck is a complicated case, and the Court of Appeals resolves the case without delving into that precedent. But the two concurring opinions offer a different take on Heck.

What prompts the concurring opinions is that plaintiff is not in custody and therefore cannot file a habeas petition. Can people like plaintiff therefore get around Heck? Judge Livingston says No. She writes, "we have never said that a plaintiff's access to Section 1983 turns on whether he has intentionally caused habeas to be unavailable. ... Those courts recognizing a narrow exception in situations where habeas was never an option have sought to afford access to a federal forum for the adjudication of constitutional claims while, at the same time, preventing those duly convicted of crimes in state proceedings ... from mounting attacks on their extant state convictions in disregard of the habeas statute's requirements."

Judge Calabresi sees things differently, writing that "the law in this Circuit ... holds, whether correctly or not, that Heck does not bar Section 1983 claims when habeas is unavailable, at least so long as the unavailability was not intentionally caused by the plaintiff."

Facebook pages have to be authenticated for use at trial

Do law students appreciate how importance Evidence class is? Everything a litigator does requires consideration of the rules of evidence. A great case can fall apart if it depends on hearsay. And a great document may be useless if it is not authenticated. That's what this case is about.

The case is United States v. Vayner, decided on October 3. This case alleged that defendant was a master forger and that he concocted records inside the United States for someone in Ukraine to "prove" that he has a daughter; with that fake birth certificate, you can avoid military service. At trial, the prosecution introduced a copy of defendant's Russian Facebook page that corroborated the testimony from other prosecution witnesses that plaintiff was a forgery expert. But the special agent who explained the Facebook page to the jury testified that he had never logged onto the site except to view defendant's page, and he did not know if any identity verification was required to create such a page. The jury found defendant guilty of forgery after the prosecutor cited the Facebook page.

The Federal Rules of Evidence outline the rules for proving that a document is authentic. This case summarizes those rules and provides some examples how to prove that a document is the real McCoy. Under Rule 901, the proponent of the evidence "must produce evidence sufficient to support a finding that the item is what the proponent claims it is." As the Second Circuit (Livingston, Wesley and Lohier) says "proof of authentication may be direct or circumstantial. The simplest (and likely most common) form of authentication is through 'the testimony of a witness with knowledge that a matter is what it is claimed to be." While the contents or distinctive characteristics of a document can sometimes by themselves authenticate a document, that only happens when the document deals with obscure subject matter "so that the contents of the writing were not a matter of common knowledge."

The Facebook page was not admissible because the special agent did not sufficiently authenticate it. While the page had defendant's name and photograph and offers details about his life, "there was no evidence that [defendant] himself had created the page or was responsible for its contents. Had the government introduced, for example, a flyer found on the street that contained [defendant's] Skype address and was purportedly written or authorized by him, the district court surely would have required some evidence that the flyer did, in fact, emanate from [defendant]. Otherwise, how could the information in the flyer be attributed to him? ... The mere fact that a page with [defendant's] name and photograph happened to exist on the Internet at the time of [the special agent's] testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf."

Another look at when discriminatory comments are enough to win the case

Many discrimination cases are won on the basis of circumstantial evidence. Some cases involve direct evidence, which certainly makes life easier for everyone in determining whether the plaintiff should win the case. The question then becomes when these comments will allow you to take the case to a jury.

The case is Wesley-Dickson v. Warwick Valley Central School District, a summary order decided on October 6. Plaintiff was a teacher who was denied tenure. She claimed that the district had engaged in racial discrimination, and in support of that argument, she cited the following evidence:

in September 2007, while she was undergoing chemotherapy and wearing a headscarf, defendant Reinhard told her that when she spoke in a southern accent she sounded “like Aunt Jemima” and as if she were “down on the plantation.” Plaintiff also attributes to defendant Fox a September 2007 remark dismissing a school district diversity conference to be led by African-Americans as “a waste of her time.” Finally, plaintiff asserts that, in May 2006, Superintendent Greenhall recounted that he had been severely assaulted by “six black boys,” but had “showed them.” She further alleges that in response to concerns expressed no later than March 2008 by union representative Mary Jane Hamburger about plaintiff’s negative performance evaluations, Greenhall stated that he was “not afraid to fire black people.” 

The issue of when discriminatory comments are enough to help the plaintiff at trial received extended treatment from the Second Circuit a few years ago, in Henry v. Wyeth Pharmaceuticals, which states:

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).

Are the statements in this case enough to show intentional discrimination? The Court of Appeals (Winter, Raggi and Hall) says no. Reinhard made what looks like a racist statement, but she did not review plaintiff's work, write her performance reviews or influence the decisionmakers who got rid of plaintiff. While Fox was one of plaintiff's reviewing supervisors and her reviews influenced plaintiff's termination, "both the Fox's isolated comment (about a district conference) and its timing (6 months before plaintiff's probationary term was extended and 18 months before she was denied tenure) are too remote and oblique to raise a triable issue of pretext." As for Greenhall's May 2006 comment of a past assault by "black boys," it was too remote in time and oblique in context to support an inference of pretext.. Hamburger's statement, meanwhile, is hearsay, as she was recounting Greenhall's statement and did so in her capacity as plaintiff's union representative and not as an agent of the school district.

Rehabilitation facility must exhaust administrative requirements before suing in federal court

Litigation can be so exciting that sometimes we can't wait to file the lawsuit and get started on discovery, motion practice and all the other lawsuit-related activities that make life worth living. But sometimes you have to wait to exhaust state law procedures before diving head first into federal court. This case reminds us of how that all works.

The case is Sunrise Detox, LLC v. City of White Plains, decided on October 2. Sunrise Detox was a proposed drug rehabilitation facility in White Plains. In the face of public opposition to the facility, the City Council determined that the neighborhood was not properly zoned for it. The City fathers told the proprietors they could seek a variance or appeal the determination to the Zoning Board of Appeals. Rather than do that, plaintiff filed a federal lawsuit, claiming the adverse determination violated the Americans with Disabilities Act. The district court dismissed the case as unripe, and the Court of Appeals (Jacobs, Sack and Lynch) affirms.

On ripeness grounds, courts have held for years that landowners who challenge zoning determinations in court must obtain a final decision from the municipality. The reason for this is that allowing the municipality to finally rule on the dispute can chrystalize the issues, shed further light on the issues or even put an end to the matter if the landowner prevails before final municipal authority. The Court of Appeals has extended this rule to cases challenging local decisions under the First Amendment speech and religiom clauses and the Religious Land Use and Institutionalized Persons Act. The Court now extends the ripeness requirement to ADA claims.

Plaintiff tries to get around the ripeness rules by arguing that it was the victim of intentional discrimination forbidden by federal law, and that "the injury from such discrimination is experienced as soon as the official acts with a discriminatory motivation." The Court of Appeals says "this argument is not without appeal." But the Court does not decide whether a property owner who claims that a local official vetoed his project for discriminatory reasons can immediately sue in federal court; it declines to rule on that issue because plaintiff does not seek compensatory damages from the official who made that decision. In any event, "only after Sunrise completes the process will it be known whether the allegedly discriminatory decision of the official had any effect at all on Sunrise's application."

The Court offers the following guidelines: 

We think, therefore, that a plaintiff alleging discrimination in the context of a land‐use dispute is subject to the final‐decision requirement unless he can show that he suffered some injury independent of the challenged land‐use decision. Thus, for example, a plaintiff need not await a final decision to challenge a zoning policy that is discriminatory on its face, or the manipulation of a zoning process out of discriminatory animus to avoid a final decision. In those cases, ʺpursuit of a further administrative decision would do nothing to further define [the] injury,ʺ and the ʺclaim should not be subject to the application of the Williamson ripeness test.ʺ

The plaintiff cannot meet that test. Although the commissioner said the properly was not zoned for the facility, "in light of administrative avenues for relief outlined in the zoning ordinance and the commissioner's letter, we conclude that neither of these acts give rise to an injury independent of the city's ultimate land-use decision." Since Sunrise cannot prove that the Court can look to a final and definitive position from the City over its application, this case is not ripe for judicial review. 

County employee's speech before Legislature not protected by First Amendment

In 1991, the Second Circuit held that a high-ranking New York City employee could not be fired in retaliation for giving subpoenaed testimony before a State Assembly Committee about the validity of civil service tests for police officers. In that case, Piesco v. City of New York, the Court said that you cannot fire someone over this because the testimony was on a matter of public concern and the Legislature cannot function without input from informed members of the public. Is Piesco still good law? Maybe not.

The case is Williams v. County of Nassau, a summary order decided on October 21. (I represented the plaintiff on appeal). Piesco provides an extensive discussion about the value of "public concern" speech in a legislative forum that requires candid feedback from the public. But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that employees who speak pursuant to their official job duties have no First Amendment right against retaliation because they do not engage in citizen speech but unprotected employee speech that can get you fired in an at-will state like New York (and most of the rest of the country).

How do we square Garcetti with Piesco? The plaintiff in this case was the Executive Director of the Nassau County Civil Service Commission. He had heard that the County Legislature had received inaccurate information about a civil service matter. So he showed up at a legislative session to set the record straight. Plaintiff was then fired. He argues that he was fired in retaliation for publicly embarrassing the County Executive. Citing Piesco, Williams argued that his termination violated the First Amendment because, like Piesco, he addressed a public body on a matter of public concern. The Court of Appeals (Wesley, Straub and Livingston) disagrees.

The Second Circuit does not address the Piesco precedent. It instead applies Garcetti and Weintraub v. Board of Education, the Court's leading Garcetti precedent, which says that employee speech is not protected under the First Amendment if it is "part and parcel" of the plaintiff's ability to perform his job. As the Second Circuit sees it, even speech like this before a County Legislature is not citizen speech and is therefore unprotected. The Court reasons:

Because Williams spoke before the Nassau County Legislature not “as a citizen on a matter of public concern,” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), but rather “pursuant to his official duties” as defined by this Court in Weintraub v. Board of Education, 593 F.3d 196, 203 (2d Cir. 2010), we hold that Williams’s speech is not protected by the First Amendment and affirm the district court’s grant of summary judgment.

So here's the question: a public supervisor is asked to provide information to a Town or Village Board or the County Legislature. Or he wants to provide information on his own. He expresses concern about retaliation if he speaks on a controversial matter that derives from his employment. The public interest is served if he addresses the public body. But his employer could legally fire him if he says the wrong thing. What advice do you give him?

Circuit lays down the rules on sexual harassment claims under Section 1983

Employment discrimination cases usually proceed under Title VII and other statutes. But you can also sue public employers under 42 U.S.C. sec. 1983, which enforces the Equal Protection Clause, which in turn also prohibits employment discrimination. There are advantages to suing under Section 1983, but there are pitfalls as well. This case highlights the pitfalls.

The case is Raspardo v. Carlone, decided on October 6. This is one of the lengthiest cases I've seen from the Second Circuit in a while, as three plaintiffs are suing a slew of public defendants for sexual harassment. What complicates the case is that under Section 1983, you generally cannot sue the public employer unless Monell liability can attach, i.e., the discrimination was the result of a municipal policy or practice. This means you have to sue individuals under Section 1983, and they can assert qualified immunity from suit if the law was not clearly-established at the time. The other complication is that sexual harassment cases involve a variety of actors, i.e., harassers (who create the hostile environment) and supervisors (whose failure to stop the harassment actually create liability under Title VII).  Here are the basics when you sue under Section 1983 for sexual harassment:

1. You cannot sue individuals under Section 1983 unless they personally committed sexual harassment that was severe or pervasive. If the hostile work environment was created by several employees, and some of those employees merely contributed to the environment but their harassment was sporadic and was not enough to independently create a hostile work environment, then that employee cannot be sued personally under Section 1983. The Court of Appeals (Droney, Winter and Lynch) says, "our prior cases have established only that when a plaintiff alleges that multiple individual defendants have engaged in uncoordinated and unplanned acts of harassment, each defendant is only liable under Section 1983 when his own actions are independently sufficient to create a hostile work environment." This means that, for qualified immunity purposes, "we therefore cannot say that it is clearly established law that an individual defendant has violated a plaintiff's equal protection rights if he has not personally behaved in such a way as to create an atmosphere of severe or pervasive harassment."

2. In sexual harassment cases under Section 1983, supervisors can be liable for the harassment if they were grossly negligent in supervising the subordinates who committed the harassment. "The standard of gross negligence is satisfied where the plaintiff establishes that the defendant-supervisor was aware of a subordinate's prior substantial misconduct but failed to take appropriate action to prevent future similar misconduct before plaintiff was eventually injured." The Court adds, "A supervisor is not grossly negligent, however, where the plaintiff fails to demonstrate that the supervisor knew or should have known of a problematic pattern of employee actions where the supervisor took adequate remedial steps immediately upon learning of the challenged conduct."The standards for supervisor harassment under Section 1983 (gross negligence) are more difficult for plaintiffs to satisfy than under Title VII, where you need only show that management was negligent in handling the employee's sexual harassment allegations.

Since several plaintiffs are accusing several defendants of harassment, the Second Circuit's decision is quite lengthy, nearly 100 pages. Many of the defendants are let off the hook because the harassment is not severe or pervasive enough or because the bad behavior was not based on gender. The following excerpt, however, shows how one defendant did violate clearly-established sexual harassment law under Section 1983:

Raspardo cites four principal incidents to support her hostile work environment claim against Carlone. In 2007, Carlone asked Raspardo if she was “planning to go out drinking or have sex with [her] boyfriend,” another officer in the department, told Raspardo that her uniform should be more “form fitting,” and attempted to massage Raspardo’s shoulders. In early 2008, Carlone showed Raspardo a suggestive photograph of a woman wearing tactical gear in a magazine which was focused on the woman’s buttocks and passed the photo around to other male officers who were also present, saying that the woman’s buttocks looked like Raspardo’s.

Raspardo told Carlone that his comments were not funny or ignored him and left immediately during these incidents. Raspardo also stated in a sworn statement to the NBPD during its investigation of Carlone that Carlone, her direct supervisor at the time, “made references [of a sexual nature] to [her]  body parts on at least over ten occasions,” particularly concerning her buttocks, often in front of other officers, which made her “feel disrespected, angry, and embarrassed.” She reiterated these allegations in her later deposition testimony and interrogatory answers.

The four principal incidents, including unwanted touching and vulgar comments in front of other officers, when combined with the “over ten” additional comments about Raspardo’s body, all over a period of just one year, would be amply sufficient to permit a jury to find a sexually hostile work environment. The evidence presented by Raspardo, if true, demonstrates that Carlone violated her constitutional right to equal protection through this sexual harassment.

Second Circuit provides some gloss on religious land-use discrimination claims

Seems like every religious discrimination case involving the Religious Land Use and Institutionalized Person Act is overly complex. This case is no different, having taken the Court of Appeals more than a year to decide. The Second Circuit revives a case filed by a Jewish organization in Connecticut that wanted to expand its building.

The case is Chabad Lubavich v. Lichfield Historic District Commission, decided on September 19. Plaintiffs purchased property to serve as its new place of worship. This property is an historic building in what is probably a quaint New England community. They asked Town officials for permission to expand the building to suit their religious needs. Anyone who has sat through planning board meetings knows how complicated the land use process is, and this case was no different. In the end, the Town denied plaintiff's proposed modifications, explaining that they would destroy the residential character of the property's environs. Plaintiffs took their case to court.

Under RLUIPA, the plaintiffs win if planning officials imposed a substantial burden on their religious exercise without a compelling interest. If this sounds like a constitutional standard, it is, or at least, it was, before the Supreme Court got rid of it in 1990. RLUIPA was Congress's way of reviving that test in the land-use context. Here are the holdings:

1. The district court (which dismissed the case before trial) misapplied RLUIPA in stating that plaintiffs cannot win without showing the government imposed arbitrary land regulations or standards. Yes, the plaintiff can show the government acted arbitrarily, but it can also win if the government imposed a land use condition that created a substantial religious burden, and if feasible alternatives existed for the religious plaintiffs to meet their needs. So this claim is sent back to the district court to try again,

2. Plaintiffs also bring an "equal terms" claim arising from the municipal denial. The Second Circuit (Livingston, Walker and Chin) says that for plaintiffs to win this claim, they have to show the government imposed conditions or terms that differed from other comparable nonreligious  applications. Plaintiffs argue that a library in the historical district got a better deal from the town in 1965. But the library is not comparable to plaintiff's proposed modifications of the building. Not only was it 50 years ago, but a different land use commission made the decision in that instance. And the size of plaintiffs' modifications are not comparable to what the library did in 1965. That claim fails.

3. RLUIPA also has a non-discrimination provision, requiring that the plaintiff prove intentional discrimination. Courts use Equal Protection case law in resolving these disputes. Under Supreme Court case law, you can show intent if the government deviated from its usual procedures in denying you the benefit, or if added unforeseeable substantive requirements during the process, or if discriminatory impact was foreseeable, or if there was something unusual or strange about the sequence of events that led to the unhappy result. This is all part of the totality of the circumstances test. This claim is returned to the district court to take another crack at this claim.

Volunteer ambulance corps is not a state actor under the Constitution

The Constitution does not regulate all behavior. It only regulates government activity. If I tell you to shut up, there is no First Amendment violation. If the Mayor tells you to shut up at a Village Board meeting, you might have a lawsuit. But the lines are not always clear-cut. How do we know when entities are "state actors" or private actors?

The case is Grogan v. Blooming Grove Volunteer Ambulance Corps, decided on September 29. As a Corps volunteer, Grogan was charged with misconduct and released from the organization. She sues for due process violations. She cannot proceed, the Court of Appeals (Hall, Chin and Cabranes) says, because the Corps is not a government entity.

There are two ways to show that an entity is a state actor: (1) if it performs a public function or (2) if government is entwined in the entity's management. Grogan cannot meet either test.

First, an entity performs a public function if the function that the government has traditionally performed, like medical care for prison inmates, animal control, fire protection and holding primary elections. Plaintiff says that ambulance services is also a traditional government function, but the Court of Appeals disagrees. New York law says that municipalities "may" provide for these services, but they are not required to do so. While the government has traditionally provided medical care to wounded soldiers, that does not mean similar services to the general population fall in the same category. And, even if ambulance services were a government function, Grogan still can't win because her lawsuit deals with a personnel matter, not the performance of those ambulance services.

Plaintiff also cannot show state action under the "entwinement" test. If the government is entwined with the entity's management or control, then the Constitution governs that entity's actions. While the ambulance corps is heavily regulated, that is not enough to show state action. Plaintiff "is required to show that the State is so entwined with [the Corps'] management that its personnel decisions are fairly attributable to the State." Since the government does not appoint members of the Corps' governing board or has any say in its personnel decisions, the Corps is not a state actor for purposes of this employment case.

Malicious prosecution claim comes back to life

We don't know exactly what happened in this case, but it looks like the plaintiff was arrested for assault after his rear-view mirror allegedly struck an officer when he drove away from the police. Plaintiff sued for malicious prosecution, and the district court threw out the case. The Court of Appeals revives the case.

The case is Coleman v. City of New York, a summary order decided on September 22. In dismissing the claim, the district court credited the testimony of two witnesses to the incident. But plaintiff testified that none of this happened the way the police said it did. And the officers' testimony about what happened contained several inconsistencies.

I guess this case is summary judgment 101. Most of us can recite the summary judgment standard in our sleep, and some judges do not even bother with a recitation of the standard in writing their opinions. But the summary judgment standard is violated all the time. Although many false arrest and malicious prosecution claims are dismissed before trial because the police need only show an objective basis to arrest the plaintiff, the summary judgment standard was violated here. The Court of Appeals (Walker, Wesley and Keenan [D.J.]) reinstates the malicious prosecution claim for the simple reason that plaintiff can win the case at trial if the jury sees the evidence in his favor..