You can sue community colleges in federal court

If ever there was a convoluted constitutional doctrine, it's the Eleventh Amendment, which says, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." It seems to say that someone from New York cannot sue Pennsylvania in federal court, but that's not how the courts have interpreted it.

The case is Leitner v. Westchester Community College, decided on February 25. The plaintiff taught at WCC and was disciplined for saying something offensive in class. When she sued WCC in federal court, the college argued that she could not do so because WCC is an arm of the state. Despite what the Eleventh Amendment actually says, the Supreme Court holds that you can't sue any state in federal court, even if you're a New Yorker who wants to sue New York. There are exceptions to this rule, i.e., if the state waives sovereign immunity, like under Title VII.

Anyway, the Court of Appeals notes that, over the years, the Second Circuit has devised two separate multi-part tests in determining whether a public entity is an arm of the state for purposes of Eleventh Amendment immunity. That's right, two separate tests, the Mancuso test (1996) and the Clissuras test (2004), both of which are still in operation in our Circuit. Rather than favor one test over the other, the Second Circuit (Leval, Chin and Carney) says that under either standard, WCC and community colleges in New York in general are not arms of the state and may still be sued in federal court.

Under the more elaborate Mancuso test, here are the relevant factors:

(1) how the entity is referred to in the documents that created it; (2) how the governing members of the entity are appointed; (3) how the entity is funded; (4) whether the entityʹs function is traditionally one of local or state government; (5) whether the state has a veto power over the entityʹs actions; and (6) whether the entityʹs obligations are binding upon the state.

But the ultimate question considers "the two main aims of the Eleventh Amendment, as identified by the Supreme Court: preserving the stateʹs treasury and protecting the integrity of the state." While the state gives WCC one-third of its budget, the state is not responsible for satisfying WCC's debts or judgments. The college is also not substantially controlled by the state; the governor only appoints four WCC board members. The remaining six board members are appointed by the County and a student body election. The state does not control WCC's day-to-day affairs. Under this analysis, although SUNY colleges are arms of the state, and WCC is a part of SUNY, since WCC operates different from a four-year SUNY college, WCC is not an arm of the state and may be sued in federal court.

The police blotter will follow you around forever

Smaller local newspapers still have a police blotter page, where you can see who was pulled over for DWI or other offenses. These blotters only tell you that someone got arrested. And for some people, this is the only time their names will ever appear in the paper. In the age of Google, this is a problem, which is why the plaintiff in this case sued various media companies for libel when the criminal charges against her were dropped.

The case is Martin v. Hearst Corporation, decided on January 28. Plaintiff was arrested for drug-related offenses in Connecticut. When the articles about her appeared in the newspaper, they were true; plaintiff was arrested. But the charges were eventually nolled. In Connecticut, that means the records of her arrest and prosecution are erased under the "Erasure Statute," which says that "any person who shall have been the subject of such an erasure shall be deemed to have never been arrested ... and may so swear under oath." This happens when the individual is found not guilty or the charges are dismissed. Plaintiff claims now that the news of her arrest are now false and misleading.

Plaintiff makes an interesting argument. For all eternity, news of her arrest remains in the newspaper, and a Google search will tell the world that she was arrested for drug-related offenses. It's unfair because the charges were dropped and nolled under the Erasure Statute. As Judge Wesley writes,

The consequences of a criminal arrest are wide-ranging and long-lasting, even where an individual is subsequently found not guilty or the charges against him are dismissed. Employers or landlords might, for example, discriminate against prospective employees or tenants who have arrest records without distinguishing those merely arrested from those arrested and subsequently convicted.

The Court of Appeals (Wesley, Walker and Jacobs) rejects plaintiff's creative argument. The Court writes that there is no getting around the fact that plaintiff was arrested and that the newspaper accurately reported that at the time.

The Erasure Statute requires the state to erase certain official records of an arrest and grants the defendant the legal status of one who has not been arrested. But the Erasure Statute’s effects end there. The statute creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods. Just as the Erasure Statute does not prevent the government from presenting witness testimony at a later trial that describes the conduct that underlies an erased arrest, the statute does not render historically accurate news accounts of an arrest tortious merely because the defendant is later deemed as a matter of legal fiction never to have been arrested.

As the news reports do not state or imply any facts that are not true, plaintiff has no defamation case. The Court says that reasonable readers know that some people who are arrested are guilty and some are not. "Reasonable readers understand that some people who are arrested are guilty and that others are not. Reasonable readers also know that in some cases individuals who are arrested will eventually have charges against them dropped. Reporting Martin’s arrest without an update may not be as complete a story as Martin would like, but it implies nothing false about her."

The New York Times published a piece on this issue a few years ago. Police blotter and other unflattering news articles are often the subject of reader requests to purge the articles from online databases. In case you're wondering, it would violate the First Amendment to pass a law requiring that newspapers publish a follow-up article to reflect the arrestee's exoneration. You can't force the paper to write something. The medial companies can if they want run a little corrective article to place the initial piece in context. But that is up to the paper, not the courts.

Class action plaintiffs get around hostile Supreme Court precedent

The Supreme Court has been scaling back the scope of class action litigation in recent years, but a recent wage and hour case in the Second Circuit shows that there is still some life in these cases.

The case is Roach v. T.L. Cannon Corp., decided on February 10. The plaintiffs used to work for Applebee's restaurants. They claim defendants did not pay hourly employees an extra hour of pay when working a ten-hour day, as required under New York law. Cases like this are ripe for class actions, because if management is engaging this practice, it is probably affecting many employees the same way.

But the Northern District of New York said recent Supreme Court (the Comcast ruling) authority prevents a class action because the plaintiffs are unable to "offer a damages model that is susceptible of measurement across the entire class." In other words, the district court said, the damages for each class member are too individualized for there to be a workable class action.

Wrong, wrong, wrong, says the Court of Appeals (Droney, Jacobs and Kaplan [D.J.]). Comcast did not reach that far. "Comcast ... did not hold that a class cannot be certified under Rule 23(b)(3) simply because damages cannot be measured on a classwide basis. ... Comcast's holding was narrower. Comcast held that a model for determining classwide damages relied upon to certify a class under Rule 23(b)(3) must actually measure damages that result from the class's asserted theory of injury; but the Court did not hold that proponents of class certification must rely upon a classwide damages model."

Since Comcast did not address the issue in this case, the Court of Appeals looks to Second Circuit precedent, which has long held that "the fact that damages may have be ascertained on an individual basis is not sufficient to defeat class certification." That remains good law until the Supreme Court finds a way around it. The case is sent back to the Northern District for a new ruling on class certification.

The City anti-discrimination law does what Federal law does not

If you handle employment discrimination cases in New York City, you have to navigate two separate legal models: federal and city law. While federal and city law used to be interpreted similarly, that changed in 2005, when the City Council rewrote city law to more broadly protect plaintiffs. Every now and then the Court of Appeals has to remind the district judges of this.

The case is Velazco v. Columbus Citizens Foundation, decided on February 13. This is an age discrimination case. On the federal claim, the district court ruled on summary judgment that plaintiff did not show that the "but for" cause of his termination, that is, his age, was the determining factor in his discharge. The district court dismissed the city claim, but it is not clear if the court analyzed the city law under the more lenient standard. So the case returns to the district court for that analysis.

Under federal law, it is not enough to show that age was simply a motivating factor in the plaintiff's termination. Under recent Supreme Court authority, Gross v. FBL Financial Services, plaintiffs have to prove "but for" causation. This is a higher standard of proof, making it easier for defendants to win. But the city law is more nuanced, recognizing that "it is not uncommon for covered entities to have multiple or mixed motives for their action, and the [city law] proscribes such 'partial' discrimination." For that proposition, the Second Circuit cites Bennett v. Health Mgt. Sys., Inc., 936 N.Y.S.2d 112 (1st Dept. 2011).

Bennett says more than that. It notes that, under city law, "discrimination shall play no role in decisions relating to employment, housing or public accommodations." Bennett reviews the state of Supreme Court authority in discrimination cases, noting that summary judgment may be appropriate even if the plaintiff makes out a prima facie case of discrimination and the employer offers a false reason for the plaintiff's discharge. As the Supreme Court said in Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000),

Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law."

But in Bennett, the First Department said that the city law does not allow summary judgment if the employer offers a false reason. The case must then go to trial.

Once there is some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to cover up the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons. These will be jury questions except in the most extreme and unusual circumstances. Proceeding in this way reaffirms the principle that "trial courts must be especially chary in handing out summary judgment in discrimination cases, because in such cases the employer's intent is ordinarily at issue."

The gap between Bennett and Reeves may not seem like much, but the Second Circuit in fact routinely grants summary judgment in employment discrimination cases under federal law, and the Court of Appeals is a "pretext plus" court, requiring the plaintiff to do more than simply prove the employer has offered a false or pretextual reason. Plaintiff also needs affirmative evidence of age or racial discrimination (or other illegal motive), such as ageist comments or a mass layoff of older employees. Some plaintiffs get around this, but that's rare. 

District courts do not have to retain jurisdiction over city claims if they dismiss the federal claims. But if they decide to hold onto the city claims, they must decide them under a standard that differs from federal case law. That's what the Court of Appeals is telling us in Velazco.

New Title VII legal standard entitles losing defendant to a new trial

This is the second time in a month that a plaintiff suffers the consequences of the Supreme Court's new legal standard guiding Title VII retaliation cases. This time around, plaintiff won his trial under the more lenient standard. Now that the Supreme Court has rewritten the rules for these cases, the case returns to trial.

The case is Zhou v. State University of New York, a summary order decided on February 5. This case has been kicking around for quite some time. In 2011, the Court of Appeals ruled that plaintiff had enough evidence to win his retaliation claim. At the time, the legal standard under Title VII was the plaintiff can win if retaliatory motive played a "substantial or motivating" role in the adverse employment decision. In May 2013, the case proceeded to trial in the Northern District of New York, and plaintiff won his case, winning $600,000 in damages.

Shortly after plaintiff won the trial, the Supreme Court came down with the Nassar decision, which interpreted Title VII to mean that plaintiff wins if "the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." We call that "but-for" causation. It is no longer enough for plaintiff to show that retaliatory motive played a substantial role in the decisionmaking. Plaintiff now has to show that this motive actually made the difference. This may seem like a subtle change, but it is enough for the Court of Appeals (Jacobs, Calabresi and Wesley) to order that SUNY gets a new trial under the revised legal standard. 

On January 14, the Court of Appeals handled a similar issue. In Cassotto v. Donahoe, the plaintiff won his retaliation trial under the old legal standard. The defendant then got a new trial because Nassar had revised the standard. On retrial, plaintiff lost the case, a devastating reminder that the Supreme Court's rulings have retroactive effect, and that a slight change in the jury instructions can make all the difference.

Inmate beard policy violates religious freedom rights

Inmates do have rights, you know. The public may not like this, but the Constitution does not have an inmate exemption. Muslims have rights, also. This case involves an inmate who wanted to wear his beard in jail because his religion requires it. The Supreme Court (including all the conservatives) agrees with him.

The case is Holt v. Hobbs, decided on January 20. The prison grooming policy says you cannot wear a beard. There are no religious exemptions, which meant that plaintiff had to violate his religious principles. Prison officials testified that even a half-inch beard could hide contraband. The Supreme Court's not buying it. The inmate wins.

After the Supreme Court in 1990 made it much harder to win religious freedom cases, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). This may shock you, but Congress specifically intended that the law protect inmates. Under RLUIPA, a law or regulation violates religious freedom if it substantially burdens a religious practice without a compelling government interest. (This is the law, by the way, that allowed Hobby Lobby to deny its employee certain birth control coverage).

There is no real dispute that the no-beard policy substantially interferes with plaintiff's religious principles. The question is whether the jail can justify the policy. It cannot. In this regard, the Supreme Court notes that RLUIPA grants more religious freedom rights than the First Amendment's Free Exercise Clause, which considers whether the plaintiff has an alternative way to practice his religious. RLUIPA contains no such provision.

While the government says the no-beard policy is necessary to prevent inmates from hiding contraband, Justice Alito says that "the argument that this interest would be seriously compromised by allowing an inmate to grow a half-inch beard is hard to take seriously." "An item of contraband would have to be very small indeed to be concealed by a half-inch beard, and a prison seeking to hid an item in such a short beard would have to find a way to prevent the item from falling out." Under RLUIPA, the government has to prove and not merely explain why the restriction is necessary. While courts like to defer to the judgments of prison officials, "it is hard to swallow the argument that denying petitioner a half-inch beard actually furthers the Department's interest in rooting out contraband."

The government also claims it needs the no-beard policy to prevent inmates from changing their appearance and disguising their identities to enter restricted areas in the prison and escape detection if they escape prison altogether. But, the Court says, the prison can take pictures of the inmates with and without their beards. Problem solved.

Pro se inmate wins two arguments in the Second Circuit

Inmates have a right to use the law library in prison. Not because the inmates are writing law review articles but because they are working on their criminal appeals. In this case, the inmate claims he was denied the right to use the library. The Court of Appeals agrees he might have a claim.

The case is Perez v. Arnone, a summary order decided on January 23. Perez brings this case under the Americans with Disabilities Act, which ensures "participation in a public entity's services." He sought an injunction in the district court, which denied that request. The Court of Appeals (Raggi, Kearse and Katzmann) sides with Perez, who wins this appeal pro se against the Connecticut Attorney General's office.

The Second Circuit says,

Perez provided evidence that the defendants deprived him of a computer, word processing programs for the visually impaired, adequate writing tools, envelopes for the blind, and an electronic magnifier. He also provided evidence that the Department of Corrections (“DOC”) deprived him of large print texts despite DOC regulations requiring that these materials be made available, and disputed the DOC’s assertion, in response to Perez’s preliminary injunction motion, that it had provided an electronic magnifier. Although the defendants provided evidence that they were working on providing word processing programs, there are factual issues as to whether the programs have been, or even could be, made meaningfully available to Perez.

 Perez also wins another argument on appeal, challenging the conditions of his confinement. This claim is separate and apart from the library claim. Perez says his anxiety disorder required that the jail provide him a single cell, without a cell-mate. He also argued that he got a single cell in New York prior to his transfer to Connecticut because of his mental health issues. "Although double-celling is not a per se Eighth Amendment violation, a full factual record is necessary to determine whtether double-celling a particular inmate is constitutional." The Court of Appeals orders the trial court to take up that issue on remand.

Supreme Court declines to hear "adverse action" case under Title VII

The Supreme Court is choosy when it comes to taking on new cases. While the Court declined to hear this Title VII discrimination case, Justice Alito dissented from that denial and issued an opinion that places this issue on the radar for management lawyers as a possibility for future Court review.

The case is Kalamazoo County v. DeLeon. Justice Alito issued his dissent from the denial of certiorari on January 12. In Title VII cases, in order to claim actionable discrimination, the plaintiff has to allege that management subjected him to an adverse employment action. If the plaintiff was fired or demoted or somehow lost money or was given an undesirable position, that employment action is sufficiently adverse for a discrimination claim. If the plaintiff suffered a trivial management decision, that is not enough for a case.

In this case, the Sixth Circuit Court of Appeals (out in the midwest) said the plaintiff had an adverse employment action because he was transferred to another position that he did not like. Plaintiff, a longtime employee, applied for a position as an equipment and facilities superintendent on the Road Commission. The job posting said the position required work "primarily in office conditions and in a garage where there is exposure to loud noises and diesel fumes." Plaintiff asked for the position, and he got it. But when he got it, he decided he did not like it. He then sued for age, national origin and race discrimination. The Sixth Circuit said a jury must hear the case, reasoning that a "plaintiff's initial request" for a transfer does not "preclude him from finding that he suffered a materially adverse employment action" when he later receives that transfer.

The Supreme Court declined to take on this case, probably thinking that this factual scenario is too uncommon to justify a full-scale case in the highest court of the land. But Justice Alito says the Sixth Circuit's ruling is so wrong that the Supreme Court can reverse without oral argument.Alito cannot understand why this is a case. He says:

Under all of the antidiscrimination provisions upon which respondent [Deleon] relies, he was required to show that he suffered an adverse employment action. That concept means, at a minimum, 'an injury or harm' that 'a reasonable employee would have found . . . materially adverse,' and respondent did not meet that standard here.

Respondent gave every indication that he wanted the position to which he was transferred," the dissent continues. "He applied for it. He spoke to his supervisors about it, and even when they told him that some of his preferences would not be met - he would not receive an assistant, and he would continue to be part of the on-call duty rotation --he continued to pursue his application. He interviewed for the position. And then, when he initially did not receive the transfer he sought, he followed up with his supervisors to ask why they had not chosen him. It is of course conceivable that respondent had changed his mind and no longer wanted the job, but if by the time of his transfer that was so, he gave no objective indication of that fact. Respondent's supervisors did not violate federal law by granting him the transfer that he sought and that they had no reason to believe he did not want.

The Sixth Circuit said plaintiff had a case even though he sought the position. Judge Keith wrote that "Deleon applied for the position with the intention of commanding a substantial raise and under the impression that employment benefits would inure to the benefit of his career. Such a request for 'hazard pay,' which was never provided, tilts the issue as to whether Deleon really requested or wanted the position in his favor." The Court added,

Nor are we persuaded by the fact that Deleon technically never withdrew his request, and did not complain at the time he received the transfer. Although Deleon did not testify that he specifically told a superior that he did not “like” his new job, he did testify that he approached his supervisors and asked them “why they took me out of a job [where] I was doing a good job and put me in a more hazardous job.” This supports Deleon’s argument that he was “set up to fail.” We are leery of a holding that would require that an involuntarily transferred employee, alleging a discriminatory work environment, must demand a transfer from the very superiors engaging in the discrimination.

The Supreme Court considered this case at its weekly conference from October through January, so there must have been quite a debate over whether to take it. Even though Justice Alito took the time to write a lengthy dissent from the Court's refusal to hear the case, the Court still took a pass. It proves once again that the Supreme Court is quite choosy, maybe too choosy, in taking on cases. The Court may have declined to hear this case, but I am sure Justice Alito is on the lookout for an issue like this in the future.