State can prohibit "Choose Life" license plates

This case raises a question that only a law professor or First Amendment obsessive would love: to what extent can a state regulate special license plates that promote the driver's personal or political agenda? It took the Court of Appeals 2.5 years to reach a decision in this case, holding in a 2-1 vote that the State of New York can regulate this speech.

The case is Children First Foundation v. Fiala, decided on May 22. (It was argued in December 2012). The state allows non-profit organizations to use custom license plates. Sometimes these plates are noncontroversial, like plates celebrating the Yankees or raising Autism awareness. And sometimes the plates are controversial, like the one in this case, which reads, Choose Life, sponsored by the Children First Foundation, which promotes adoption over abortion.

The government-sponsored plates are a nonpublic forum, which means the DMV regulations governing them must be reasonable and viewpoint neutral. More broadly, the First Amendment requires that the regulations limit any discretionary decisionmaking by state officials in granting or denying specialty plate ideas. If the rules allow for discretionary decisionmaking, the risk is that someone might deny the application for political reasons. The Court of Appeals decides for the first time that "the unbridled discretion doctrine applies in the context of nonpublic forums."

Under the regulations, no plate shall be issued that “is, in the discretion of the commissioner, obscene, lewd, lascivious, derogatory to a particular ethnic or other group, or patently offensive.” The Court says this is a discretionary and standardless rule. But we also consider pertinent agency policies and practices to see if the written test really allows for discretionary decisionmaking. In 1998, the DMV Commissioner said the State does not want to promote or display politically sensitive messages on license plates in order to prevent road rage and aggressive driving. The Court also says the State has uniformly applied this policy in other cases, like when someone wanted a "restore the Wolf" plate when a debate raged over whether to reintroduce this animal in the Adirondacks. The DMV also denied an "RU486" plate, which drew attention to birth control.

The regulation does not violate the First Amendment. Judge Pooler writes,

The DMV’s policy does require interpretation and line drawing as to which subjects to exclude entirely, but that does not undermine the policy’s potency as a safeguard against the  Commissioner’s exercise of unbridled discretion. Put another way, some discretion —particularly in a nonpublic forum, where “[s]electivity and discretion are some of the defining characteristics” of the forum —does not constitute unbridled discretion. After all, “perfect clarity and precise guidance” are not required.

 . . .

We conclude that the DMV’s policy of excluding completely controversial political and social issues—regardless of the particular viewpoint espoused—from the nonpublic forum of custom license plates, based on concerns pertaining to potential violence and the perception of state endorsement of the message, is sufficiently well‐established and has been uniformly enforced so as to render the Commissioner’s discretion adequately bridled.

Judge Livingston issues a long dissent. This issue is not put to rest. The Supreme Court is taking up the same issue. 

Gang shooting defendant wins appeal

Upstate New York can be quite beautiful, but the City of Newburgh is no romp in the park. The case highlights the dangerous streets of the City and also articulates a new standard for the crime of accessory to murder after-the-fact.

The case is United States v. Calderon, decided on May 12. This was a multi-defendant criminal trial in White Plains involving gang activity. The jury convicted various gang members for racketeering, narcotics, and obstruction‐of‐justice offenses. Everyone loses their appeal except for Cardona, who as getaway driver was convicted as an after-the-fact accessory. That conviction is reversed.

The Second Circuit (Wesley, Kearse and Chin) surveys the landscape in arriving at the following legal standard: "the Government must prove that the defendant knew or must have known that the victim was dead or dying at the time she decided to act as an accessory after the fact to murder."

Under this test, adopted from the Fourth Circuit, the evidence was insufficient to find Cardona guilty. Yes, she drive the shooter out of the City. "No rational juror could have found that Cardoza knew that Maldonado was dead or dying during the relevant time period." Here is the reasoning, replete with the names of the other gang members who were caught up in the case:

The facts the Government employs to this task are insufficient to impute knowledge of Maldonado’s condition to Cardoza. Overton’s testimony that he was told that Cardoza would be around the corner waiting for him provided a reasonable inference only that Cardoza knew she was driving someone away from a crime. Although there was evidence that Lewis had been told that the plan was to kill Maldonado, there was no evidence that Cardoza was present when Lewis was so informed or that he relayed that information to her. Even if Cardoza was told that Maldonado was going to be shot, there is no evidence that she knew Maldonado was dead or dying when she drove Overton away.

Tambito’s direction to Cardoza to “[g]o get” Overton when he ran the wrong way, while showing that Cardoza understood that she was providing getaway services, does not show that she knew what Overton’s mission was or that it had been successful. Lastly, in the conversation between Overton and Lewis on the drive out of Newburgh, there is no indication that either Maldonado or the shooting were discussed.

Circuit reinstates religious harassment verdict despite plaintiff's major credibility problems

I would say this is the most interesting employment case of the year from the Court of Appeals, which reinstates a religious discrimination jury verdict but finds the plaintiff is not entitled to any damages. What fascinates me is how the plaintiff's credibility was ripped apart at trial but he still won the case.

The case is Wiercinski v. Mangia 57, Inc., decided on May 21. The evidence at trial was largely testimonial. Plaintiff told the jury he was repeatedly subjected to anti-Semitic abuse at work. Some of the harassment was quite ugly, with co-workers making Holocaust references. But the case also had problems, some of which are typical for employment discrimination cases, such as (1) management did move one of the harassers away from plaintiff for a brief period and (2) plaintiff had no medical evidence to corroborate his testimony that he suffered from depression and anxiety.

But plaintiff's case also had extraordinary problems: (1) he invoked the Fifth Amendment 24 times during a brief cross-examination, which focused in part on plaintiff's alleged failure to report income on his tax returns and other financial improprieties; (2) plaintiff's witnesses were repeatedly impeached over their prior inconsistent testimony; and (3) one defense witness testified that plaintiff offered him cash money in return for favorable testimony, and even more money if plaintiff won the case. The trial court said that plaintiff's witnesses sounded like "the glib testimony of school witnesses reciting a lesson," and plaintiff did not rebut the cash-for-testimony evidence.

Despite these problems, the jury found in plaintiff's favor, awarding him $1 in nominal damages and $900,000 in punitive damages. The trial court vacated the verdict. The Court of Appeals (Parker, Hall and Livingston) reinstates the verdict but says the district court properly vacated the punitive damages.

After giving us a good summary of the state of the law governing workplace harassment and employer liability, the Court of Appeals says that credibility issues are always for the jury, not matter what the trial judge thinks of the plaintiff and his witnesses:

The district court “determined that a judgment should be entered for the defendant notwithstanding the verdict (pursuant to Rule 50(b)) because [it] ha[d] a feel of this case that is indelibly engraved upon [its] consciousness for having seen and heard the witnesses and with an awareness of the nuances of their testimony . . . .” Although we fully understand the district court’s concerns, we cannot agree with its explanation for vacating the liability verdict. This was a case based entirely on testimonial evidence from both parties. The district court was “required to consider the evidence in the light most favorable to the party against whom the motion was made,” and to “disregard all evidence favorable to the moving party that the jury is not required to believe.” Although the district court was justifiably concerned by what it correctly perceived to be troubling conduct by Wiercinski and his witnesses, the jury was properly instructed on how to consider Wiercinski’s testimony in light of the invocation of the Fifth Amendment and chose to credit his version of the events, as well as the testimony of his witnesses. Given that testimony, the jury could rationally have concluded that Zbozien subjected Wiercinski to a hostile work environment. The district court’s rejection of the jury’s conclusion was essentially grounded in the type of evidence weighing and credibility determinations that are not permitted by Rule 50(b).

What about the punitive damages? Plaintiff does not recover them, and the $900,000 flies out the window like a paper airplane. To get punitives under Section 1981, plaintiff has to show defendant discriminated in the face of a perceived risk that its actions violated federal law or that it acted egregiously or outrageously. Here's the analysis (and bear in mind that Cymanow was Mangia's general manager):

There is no evidence in the record that Mangia “discriminated (or retaliated) against [Wiercinski] with conscious knowledge it was violating the law, or that it engaged in egregious or outrageous conduct from which an inference of malice or reckless indifference could be drawn.” The only conduct that can be imputed to Mangia that Wiercinski alleges was “malicious” or “recklessly indifferent” was Cymanow’s alleged failure to act after Wiercinski complained to her about the discrimination. Even if this fact could establish an employer’s liability for co‐worker harassment, it does not, by itself, warrant an award of punitive damages.

Even if we credit Wiercinski’s version of the facts, the remaining evidence shows that Wiercinski “was a friend of [] Cymanow’s family for years, was a frequent visitor in her home, invited to participate on festive occasions[,] and was re‐hired by her after he was discharged.” Additionally, Wiercinski was an employee of Mangia for over 20 years, during which period the company granted his requests to be transferred to more preferential locations and even his own request to continue to work on Zbozien’s shift. When Wiercinski complained to Cymanow about Zbozien’s conduct, she transferred Zbozien to a different location. After Zbozien returned, Cymanow granted Wiercinski’s request to be transferred to a different shift. Even if these efforts were not sufficient to remedy the harassment, the evidence shows that, “[f]ar from acting maliciously or indifferently or egregiously,” Mangia and Cymanow “sought to, and did, address [Wiercinski’s] complaints in good faith.”

The case is remanded to the district court to decide plaintiff's attorneys' fees motion. But the Court of Appeals suggests that plaintiff might not be entitled to any. "Given the highly unusual facts of this case, the district court would be well within its discretion to conclude that this is a rare instance where a plaintiff who 'formally prevails under Section 1988 should receive no attorneys' fees at all.'"

EEOC must take conciliation seriously under Title VII

This unanimous decision from the Supreme Court rules for the first time that courts may second-guess the EEOC's enforcement efforts in trying to resolve employment discrimination cases before they become lawsuits.

The case is Mach Mining, LLC v. Equal Employment Opportunity Commission, decided on April 29. Before you can sue under Title VII, the Age Discrimination in Employment Act and other discrimination laws, you have to first file a charge with the EEOC, which conducts an investigation. If the EEOC thinks there is a case, it can file a lawsuit against the employer, but it must first try to conciliate the dispute. What if the EEOC goes to court without trying to conciliate in good faith?

One answer to that question was that the EEOC's conciliation efforts are not reviewable in Court., That is what the Seventh Circuit thought. The Supreme Court disagrees. Most agency decisionmaking is reviewable in some form or another. The EEOC cannot escape judicial scrutiny. But that judicial scrutiny is limited. Here is how Justice Kagan sums it up:

The EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of “reasonable cause.”Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.

Litigation-wise, here is how the dispute shakes out. "A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. ... If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute. Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance."

Pro se inmate wins PLRA appeal

Before they can bring lawsuits challenging the constitutionality of their prison conditions, including the use of excessive force by correction officers, inmates must file an internal grievance. That rule has exceptions. This case highlights one of them.

The case is Harvey v. Correction Officers 1 through 6, a summary order decided on May 8. Harvey says he was beaten up by officers. Since he did not exhaust internal administrative remedies, the case was dismissed. The Second Circuit reinstates the case.

Harvey wins the appeal. Sometimes the failure to file an internal grievance is excused, like when the jail prevents the inmate from filing one. Here, Harvey says he was threatened with further beatings if he complained to anyone about the assault, and that he was then placed in solitary confinement and denied any writing instruments so he could not write up a grievance. After that, Harvey was sent to another jail, Downstate, and told he could not file a grievance over something that happened at a different facility. While Harvey did tell a nurse and psychiatric staff that he had been assaulted, that does not mean the threats not to file a grievance were not enough to deter him from formally complaining.

The case returns to the district court for some additional factfinding, including whether a grievance representative at Downstate was a staff member there. So, even though Harvey wins the appeal, it does not mean he can litigate his excessive force claim. If the district court resolves these grievance issues on remand in favor of the Jail, then the lawsuit over.

Social Security claimant recovers attorneys' fees under Equal Access to Justice Act

When people win their Social Security benefits before an administrative law judge, their lawyers can recover attorneys' fees if -- and only if -- the government's position in opposing the fees was not substantially justified. (This is distinct from civil rights cases, where the plaintiff's lawyer recovers fees as a matter of course if plaintiff wins the case).

The case is Padula v. Colvin, a summary order decided on May 7. In 2013, the Second Circuit ruled in Padula's favor after the ALJ denied his benefits. The Court said the ALJ had not considered all relevant medical and other evidence in deciding that Padula's reported symptoms of fatigue and nausea were not credible. As a prevailing party, Padula then moved for attorneys' fees under the Equal Access to Justice Act. The district court said no to the fees. The Court of Appeals (Calabresi, Pooler and Raggi) says yes.

A body of case law tells us what "substantially justified" means under the EAJA. The government must make a strong showing that its position in the case was "justified to a degree that could satisfy a reasonable person." The problem for Padula and other plaintiffs is the standard of review on appeal is "abuse of discretion," which is another way of saying the Court of Appeals defers to the district court's ruling. But not all deference is limitless.

On the record before us, the [Social Security] Commissioner has not carried her burden of showing that her position was substantially justified. To be sure, the Commissioner continues to urge a view of the evidence suggesting that it should have prevailed on the merits of the prior appeal, but this reprise of arguments we previously found unavailing is insufficient on its own to show that her “position . . . had a reasonable basis in both law and fact.” In her submissions to the district court and this Court, the Commissioner makes no attempt to defend the ALJ’s failure to consider the treatment notes of Padula’s psychiatrist, which recounted Padula’s complaints of fatigue and nausea, and revealed that he was being prescribed medication to alleviate precisely these documented symptoms. The Commissioner’s sole defense of its prior litigation position is its contention that the ALJ reasonably relied on the treatment notes for several individual visits, where Padula failed to report nausea, fatigue, or side effects of his medication.

While Padula gets fees, the Court of Appeals cuts them by 40 percent. Counsel spent about 81 hours on the case. The Court says it usually awards fees in cases where the lawyers expended 20 to 40 hours on the case.

Don't swing a belt at a police officer

Trial is where the action is, the culmination of all discovery and motion practice. At trial, a great case on paper can be rejected by the jury in five minutes. Sometimes the case does not even make it to the jury, as the trial court can dismiss the case mid-trial if plaintiff does not have enough evidence to win.

The case is Bennett v. Britton, a summary order decided on April 20. Plaintiff sued Town of Southampton police officers for excessive force. The trial court threw out the case under Rule 50 at the close of the plaintiff's case, ruling that Bennett's theory of the case -- that a blond-haired officer had assaulted him -- was not true because there was no blonde-haired officer on the scene of plaintiff's injuries. This decision was actually wrong, says the Court of Appeals. The jury can credit any plausible theory it wants at trial, and it can reject plaintiff's factual arguments and credit certain other facts that can still result in a plaintiff's victory. Despite that error, plaintiff still loses on appeal, and the case will never go to the jury.

One theory of the case held that Sgt. Britton struck plaintiff from behind with his knee. This theory of liability could have held water. As the Court of Appeals (Katzmann, Pooler and Carney) states:

Bennett’s treating physician testified that it would be extremely difficult for Bennett to walk with a fractured femur, yet both arresting officers testified that Bennett was able to walk to their vehicle following his arrest. But after Sergeant Britton’s knee strike, according to one officer’s testimony, Bennett was yelling in pain and had to be carried to his cell. Deciding between the two versions was a job for the jury that it did not get to do.

But the jury does not have to decide whether this version holds true because there was another reason plaintiff should have lost the trial under Rule 50: Sgt. Britton had good reason to strike plaintiff. Police officers testified that when plaintiff was directed to remove his belt at the police station, he menacingly swung the belt at an officer. Sgt. Britton struck plaintiff to protect the target of plaintiff's ire. As plaintiff cites no evidence controverting the officers' testimony or suggesting the officers were not credible on these points, he could not win the trial even had the district court allowed the case to proceed to verdict. 

Convicted felon wins due process appeal from parole rescission

This case is a fascinating one because it involves a convicted murderer who sued state parole officials who allegedly conspired to rescind a parole board decision to grant him parole. The case was dismissed on summary judgment, but the Court of Appeals revives plaintiff's due process claim.

The case is Victory v. Pataki, a summary order decided on April 17. At eight single-spaced pages, this is one of the longest summary orders in years. Plaintiff is not a sympathetic character. He was convicted of felony murder in the death of a police officer in 1970, and in 1978 he escaped from jail and remained at large before they found him and threw him back into jail. He's been a model inmate since 1981. He was granted parole in March 1999, but before plaintiff was able to leave prison, a series of phone calls took place between Governor Pataki's office and Board of Parole people in Albany. This led to a parole rescission hearing that month, which resulted in ... rescission. No parole for Victory. The Board of Parole then reversed that decision because the rescission ruling was procedurally flawed, ordering a new hearing that never happened because a state court next granted plaintiff's habeas corpus petition, which the Appellate Division then reversed while ordering a new hearing. That new hearing never happened, either, because plaintiff was reincarcerated for violating parole conditions. Some further court activity led to plaintiff's freedom again. Meanwhile, he sued state officials, including Pataki, for the parole rescission.

Got all that? The beauty of the court system is that even someone like Victory can get a fair shake despite his background. As governor, Pataki had made an issue about denying parole to guys like this, but that did not become law. No politician was ever taken to the woodshed for being tough on crime. Anyway, the Second Circuit (Pooler and Parker [Wesley recused himself]) reverses summary judgment on the due process claim, finding that the district court did not view the evidence in the light most favorable to Victory. It boils down to those communications among Parole Board and Governor's office people right after Victory won parole. The Second Circuit finds evidence of a conspiracy, one of the hardest ways to win a civil rights case. Here is how the Court of Appeals sees it:

[A]t no point did the district court address the phone records corroborating Victory’s contention that the conversations allegedly identifying Victory’s escape as a basis for rescission preceded Graber’s own purported realization that he had overlooked the escape. Whereas the State Defendants asserted that Graber first became aware of Victory’s escape on January 13, 1999, during a phone conversation between Graber, Tracy, and Grant, Victory pointed to phone records indicating that this call could not have occurred until January 14, 1999, the day after admissible evidence suggests that Lapp was already soliciting letters emphasizing the escape. As the district court at one point acknowledged, Victory raised a genuine dispute as to whether Graber lied about his awareness of the escape to the rescission panel. Considering these facts in conjunction with the State Defendants’ inconsistent testimony regarding the chain of events preceding the rescission hearing, a reasonable juror could conclude that there was an agreement among those defendants who prematurely set in motion rescission procedures with this allegedly false pretext in mind. These “inference[s] of impropriety” distinguish Victory’s conspiracy allegations from those that we have dismissed on the basis that they are supported only by “unsubstantiated speculation” with no evidence “to suggest anything untoward took place.”

Circuit revives racial discrimination/retaliation claim

I am finding that the Court of Appeals does not reverse summary judgment that often in employment discrimination cases, and that when they do so, they often issue a summary order, which has no precedential value. This is one of those cases.

The case is Henvill v. Metropolitan Transportation Authority, decided on April 20. Plaintiff claims racial discrimination in connection with "command discipline" issued by a supervisor. He also claims retaliation over the removal of summons-issuing responsibilities. One issue on appeal is whether the command discipline was an adverse action under the civil rights laws. If you practice in this area, you know that not every negative decision at work can give rise to a lawsuit. It has to be a significant alteration of the plaintiff's responsibilities. Only then is it worth suing over.

Here, "the alleged effects of the command discipline plausibly constitute a 'material loss of benefits.'" In addition, the Amended Complaint alleges that specific white officers who committed overtime violations similar to plaintiff's violations were not disciplined. This would give plaintiff a classic disparate treatment case. So that claim is revived on appeal following the district court's contrary decision.

The Court of Appeals (Jacobs, Lohier and Geraci [D.J.]) also revives the retaliation claim. Plaintiff alleged that shortly after he filed an EEOC charge, management prohibited him from issuing summonses. This change in duties may have constituted a significantly adverse job action sufficient to support a Title VII retaliation claim, the Court of Appeals says. And you know it's true. What police officer doesn't want to issue summonses?

How to plead a racial discrimination case

I always think racial discrimination cases are the hardest of all the discrimination cases to win. We all know racism still exists, but you are asking the court or jury to brand the defendant with a scarlet letter in finding that it practiced the most insidious discrimination of them all.

The case is Green v. District Council 1707, a summary order decided on April 17. This case was dismissed under Rule 12 for failure to state a claim. For non-lawyers, that means the case did not get any further than the lawyer filing the lawsuit. The judge reviews the allegations and decides if plaintiff has alleged enough facts to support a plausible claim.

The Court of Appeals (Jacobs, Lohier and Chen [D.J.]), reinstates the racial discrimination case. Here is the reasoning:

The defendants argue that the allegations in Green’s amended complaint fail to give rise to an inference of race discrimination. We disagree with respect to Green’s claims based on his termination and the denial of severance. Green has stated a claim of race discrimination under § 1981 because he plausibly alleged, among other things, that his supervisor consistently treated African American and Latino employees better than similarly situated Caucasian employees and that he was replaced by an African American.

In the alternative, the defendants argue that the District Court was right to dismiss the amended complaint because it pointed to legitimate, nondiscriminatory reasons for Green’s termination. But “[w]hether there existed non-pretextual, non-discriminatory explanations for the defendants’ employment decisions . . . is not properly decided on a motion to dismiss for failure to state a claim.” Brown v. Daikin Am. Inc., 756 F.3d 219, 230-31 (2d Cir. 2014). We therefore vacate the judgment of the District Court insofar as it dismissed Green’s claims for race discrimination under § 1981 with respect to Green’s claims based on his termination and the denial of severance.

Take a close look at the reasoning. You cannot win an employment discrimination case without showing the employer's reason for your termination (or job denial) was a pretext for discrimination, i.e., the employer says you were fired for lateness, but in fact non-white employees were coming into work late all the time and were not fired. But in drafting the complaint, you do not have allege that the employer's articulated reason was pretextual. Of course, most lawyers will continue to do so, and for good reason. Under the Iqbal plausibility standards governing complaint drafting these days, the more detail, the better. You want the trial court to find the allegations of discrimination are plausible. What better way to show plausibility than to allege with detailed facts that the employer has offered a phony reason for the plaintiff's discharge?

2d Circuit says FLSA complaint does not have to be in writing

The Court of Appeals holds that, in order to bring a retaliation claim under the Fair Labor Standards Act, plaintiffs are not required to complain about pay disparities in writing; a verbal complaint to management is enough. This ruling repudiates a Second Circuit case from 1993.

The case is Greathouse v. JHS Security, decided on April 20,  nearly two years after oral argument. In Lambert v. Genessee Hospital, the Second Circuit 22 years ago said these claims required a formal complaint to a government agency. But in 2011, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics, 131 S. Ct. 1325, that "filing a complaint" under the FLSA includes oral as well as written complaints so long as the complaint is "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context."

The Supreme Court tells the Second Circuit what to do, so the Second Circuit has no choice but to declare the Lambert ruling dead and gone. Other Circuits have already done this. The Second Circuit (Pooler, Carney and Korman [D.J.]) notes that either other Circuit Courts have said the FLSA protects workers from retaliation for their complaints made to employers. In hindsight, the Second Circuit says, the Court of Appeals in 1993 probably got it wrong in any event, and "we now conclude that the statutory language is not as plain and unambiguous as it seemed when Lambert was decided." The FLSA does not require "formal" complaints, and it also does not say plaintiffs have to file anything with a governmental agency. Moreover, "filed any complaint" may be interpreted to include intra-company complaints.

This interpretation is also consistent with the FLSA's statutory purpose, intended "to correct and as rapidly as practicable to eliminate labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." Since "the government cannot directly monitor every employer's payroll, FLSA also creates an enforcement mechanism that relies in significant part on employees' complaints." The revised FLSA interpretation allows pay disparity complaints to be resolved informally, quickly and without government red tape, before the employees have lost significant wages or benefits.

This ruling has a few caveats. Employers cannot be expected to interpret all workplace complaints as FLSA complaints. The proverbial water cooler grievance probably doesn't count. In Kasten the Supreme Court said:

“a complaint is ‘filed’ [only] when a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the Act.” The employee need not invoke the Act by name, but, as the Court concluded, “[t]o fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” 

The Second Circuit declines to define the exact contours of that standard, but it does say that the Kasten test would "exclude from the concept of 'fil[ing a] complaint' a mere passing comment."

Famous figure skater loses defamation case

Defamation cases are like professional grudge matches. Courts have in place strict rules that plaintiffs must satisfy in order to win. Otherwise, every insult and affront becomes a lawsuit.

The case is Baiul v. Disson, a summary order decided on April 16. Plaintiff is Oksana Baiul, the 1994 Olympic Gold Medal winner. One barrier to victory is that if the plaintiff is a "public figure," she has to prove the falsehood was made with actual malice against her. That's because public figures have to tolerate a lot more nonsense than everyone else. Politicians are public figures, but renowned athletes are, too, like the plaintiff, a self-described "superstar in the world of figure skating." Even I have heard of the plaintiff.

So the actual malice standard kicks in. Plaintiff must prove that someone uttered a public falsehood with knowledge that it was untrue. You have to prove malice with clear and convincing evidence. The defendant said plaintiff failed to appear for a skating show because she was out shopping. Even if this statement if false, plaintiff cannot show it was said maliciously. She also does not suggest the story was improbable or that the information came from a dubious source. Plaintiff even admitted at deposition that "it was gossip in the skating industry that she missed an event because she was out shopping."

ADA case fails on "essential functions" prong

The Americans with Disability Act is like a huge rubber band that requires employer and employee to be flexible in accommodating a disabled employee's disability. So these cases can be hard to predict. But one central element of these claims is that that the employer does not have to accommodate the employee if he cannot perform an essential function of the job even with an accommodation.

The case is Snowden v. Columbia University, a summary order decided on April 16. In these cases, we ask what were the essential functions of the job. For Snowden, it was sorting, filing, bending, reaching and stooping. (The decision does not tell us this, but my guess is that plaintiff was a file clerk). A plethora of factors helps the courts determine what is an "essential function," including the employer's judgment, written job descriptions, the amount of time plaintiff spent performing the function, etc., etc., etc.

The case was dismissed on summary judgment. The Court of Appeals (Walker, Calabresi and Raggi) affirms. Plaintiff argued on appeal that the parties had vigorously contested the essential functions of her position in the district court. In particular, she says the jury must decide if lifting heavy boxes was an essential function. The Second Circuit disagrees, citing plaintiff's deposition testimony and Rule 56.1 statements, in which he made certain admissions that support the employer's position.

This reminds me of a practice tip when handling cases in the Second Circuit on appeal from summary judgment. In preparing for oral argument, take a look at the Rule 56.1 statement. District judges of course review them in deciding what facts are material. The Court of Appeals does also. Fifteen years ago I argued an appeal without double-checking the Rule 56.1 statement. One of the judges asked me about a fact that plaintiff had admitted in that document. My response was not exactly Clarence Darrow. In preparing for argument, I have checked the Rule 56.1 statements ever since.