Don't make flippant comments about bombs at the airport

If I told you the facts of this case, could you predict the outcome? The plaintiff was late for her flight, and when the airport people told her her luggage was already on board, she got upset. "By Baez’s own account, Baez then made cryptic reference to the possibility of a bomb in her luggage: 'Isn’t it a security risk to let a bag go on a plane without a passenger, what if there was a bomb in the bag?'" When someone mentioned that “TSA agents would know if there was a bomb in the bag,” Baez retorted “TSA‐‐my ass” and walked away. Baez was charged with making a false bomb threat and sued for false arrest.

The case is Baez v. JetBlue Airways Corp., decided on July 16. Baez loses the case. The law allows air carriers to provide the TSA with information necessary to respond to potential bomb threats. This immunity is pierced if employees make false, inaccurate or misleading statements or with reckless disregard to the truth. She invokes that exception, but the Second Circuit (Jacobs, Raggi and Lynch) is not buying it. The Court reasons:

Baez claims she raised only a hypothetical question about the security risk posed by a checked bag unaccompanied by its owner, which might contain a bomb. But since Baez’s luggage was indisputably a checked bag unaccompanied by its owner, “a reasonable [law enforcement] officer . . . would have wanted to investigate." ... At an airport, a bare reference to a bomb may be enough to set off the chain of events that resulted in Baez’s detention, interrogation, and arrest by the FBI. ... A gate agent or airline manager may not confidently distinguish between a veiled threat and a comment expressing genuine concerns about security. That is why, once a report is made, it is for the TSA and other law enforcement officers “to determine and
execute a response.”

Baez offers some creative arguments to get around all of this, i.e., that someone at the airport did not regard her as a real security threat, but this is the post-9/11 world. Her comments grounded the plane and FBI detained and questioned Baez for several hours.You cannot joke or make flippant comments about a bomb in your bag. Talk about something else, like baseball. 

Court tells us how to make out a prima facie case of racial discrimination in employment

The Second Circuit does not reverse summary judgment in racial discrimination cases too often. It does so in this case, finding that plaintiff makes out a prima facie case of discrimination.

The case is Tolbert v. Smith, decided on June 24. Tolbert was a culinary arts teacher who was up for tenure and received classroom evaluations from his superiors. Along the way, Principal Smith made racist remarks. When plaintiff offered to cook the homecoming breakfast, Smith said, "Do you only know how to cook black, or can you cook American too?" Smith also asked one of plaintiff's students if she was learning anything from plaintiff, asking "how she expected to learn if all she was learning to cook was black food." Another student said Smith said "black kids can't learn in a cooking class because all they want to do is eat." When plaintiff told Smith that janitorial staff were not cleaning parts of his classroom, possibly referencing the demographics of the student body, Smith replied, "the kids we get to this school are not from much better than this." Also referencing the student body, Smith also told a school counselor, "my friends, they are not like us."

As Tolbert was denied tenure after the school altered the procedures leading up to that adverse action, these statements support plaintiff's prima facie case of racial discrimination. Here are the issues resolved by the Court of Appeals (Lynch, Carney and Koeltl [D.J.]):

1. Although the denial of tenure is an adverse action under Title VII (one of the elements of a prima facie case), defendants argue that plaintiff suffered none here because they offered (and plaintiff denied) a fourth year of probationary employment (tenure usually follows after three years), which means plaintiff's "employment situation would have been no worse had he accepted the offer." Nice try, the Court of Appeals says. In rejecting defendants' argument, the Court fleshes out what it means to have an adverse employment action:
 

The defendants ignore the fact that the offer of a fourth year of probation was intertwined with the denial of tenure. Had the plaintiff received tenure, he could have been terminated only for cause. But had he remained a probationary teacher, he could have been terminated for any lawful reason. The denial of tenure therefore was the denial of a material improvement in the conditions of the plaintiff’s employment.

Not only did the school deny plaintiff tenure (and all the job security that comes with it), it also declined to award him a contract, allegedly because of his race. "Refusing to award a contract or a material employment benefit for a discriminatory reason violates" the civil rights laws.

Were we to accept the defendants’ interpretation, then failure to promote claims—or any claims alleging the denial of an employment benefit—would be non-actionable. And that cannot be the case. “A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all.” Hishon v. King & Spalding, 467 U.S. 69, 75 (1984). Extending an employment relationship by one year by itself may not qualify as an adverse employment action. But when coupled with the denial of tenure, it is assuredly an adverse employment action. During the fourth year of probationary employment, a teacher can be fired at any time for any lawful reason. But if granted tenure, the teacher may be fired only for cause. The denial of tenure after three years, when a teacher was otherwise eligible for tenure, does not become any less an adverse action because the teacher is provided with another year of probationary employment.

2. The Second Circuit also finds the jury could find plaintiff was denied tenure under circumstances creating an inference of discrimination, also an element of the prima facie case. The principal's comments about the student body sound sufficiently racial to suggest that race played a role in plaintiff's tenure denial. These comments were not stray remarks or too remote from the adverse decision; they were uttered by a de facto decisionmaker close in time to the tenure denial. "And Principal Smith’s comment to a student that 'black kids can’t learn in a cooking class because all they want to do is eat,' could be viewed as evidence of a discriminatory intent on Principal Smith’s part in dismantling John Marshall’s culinary arts program. The fate of that program, for which Mr. Tolbert was the only teacher at John Marshall, was directly relevant to the decision whether to grant him tenure."

3. You can also make out of a prima facie case if the adverse action resulted from management's failure to follow the usual procedures in making that decision. Plaintiff's year-end evaluation which led to his tenure denial was conducted by a surprise evaluator without plaintiff's advance knowledge. The principal also relied on a negative evaluation in isolation. "These irregularities, when combined with Principal Smith's alleged remarks, are sufficient to establish a prima facie case of discrimination."

Tolbert does not win it all on this appeal. The Court of Appeals rejects his hostile work environment claim. While the principal made offensive comments, only two were made in plaintiff's presence. One comment was ambiguous. There was not enough racial comments thrown in plaintiff's direction to create a hostile environment.  

Food Stamp law can be enforced through Section 1983

Under the Food Stamp Act, the government must give benefits within 30 days of the application and within seven days for especially needy households. Can plaintiffs sue a state to enforce these time limits under Section 1983? The Court of Appeals says Yes.

The case is Briggs v. Bremby, decided on July 6. The  court entered a preliminary injunction against the State of Connecticut after finding the State was not timely issuing benefits.The issue here is whether the Food Stamp Act can be enforced through Section 1983, the federal civil rights law that allows you to seek relief for the violation of federal civil rights. Not every federal statute can be enforced through Section 1983. Under Supreme Court authority, the statute can predicate a Section 1983 action (which allows for compensatory and punitive damages and attorneys fees) under the following circumstances:

1) “Congress must have intended that the provision in question benefit the plaintiff,” 2) “the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence,” and 3) “the statute must unambiguously impose a binding obligation on the States.”

All three prongs are satisfied here. The Food Stamp time limits establish a right that is neither vague nor amorphous and they impose binding obligations on the states. The Second Circuit (Calabresi, Hall and Carney) also finds that Congress intended these provisions to benefit Food Stamp applicants. (Connecticut argued that the law was intended only to guide states in how to marshal their resources when administrating the Food Stamp program). And, although the law grants enforcement authority to the Secretary of Agriculture, the Court further finds that Congress did not expressly or impliedly signal that it did not want people to enforce the statute through Section 1983.

For plaintiffs, suing to enforce a statute under Section 1983 is quite desirable. That statute gets you all the damages you want, plus attorneys' fees. It also gets you into federal court. What strikes me about this case is that the modern Supreme Court has scaled back on the statutes that can predicate a Section 1983 claim. I wonder if the government will ask the Supreme Court to take on this case.

Contract lawyers who review documents may be entitled to FLSA overtime

Here's an interesting Fair Labor Standards Act case that says that contract attorneys who perform document review for large law firms are entitled to overtime pay.

The case is Lola v. Skadden Arps, decided on July 23. Skadden Arps is one the largest law firms in the world. Like many large firms, it hires lawyers to review the thousands of documents that might be relevant in the high-stakes litigation that these firms engage in. He was not paid overtime, however. This is a potential class action suit, by the way.

Under the FLSA, employers have to give you overtime if you work more than 40 hours per week. But the FLSA has many exceptions, including one that says professionals are not entitled to overtime. Are contract attorneys like Lola who review documents entitled to overtime? Here is how the Court of Appeals (Pooler, Lohier and Droney) summarizes plaintiff's position:

Lola alleges that his work was closely supervised by the Defendants, and his “entire responsibility . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.” Lola further alleges that Defendants provided him with the documents he reviewed, the search terms he was to use in connection with those documents, and the procedures he was to follow if the search terms appeared. Lola was paid $25 an hour for his work, and worked roughly forty‐five to fifty‐five hours a week. He was paid at the same rate for any hours he worked in excess of forty hours per week. Lola was told that he was an employee of Tower, but he was also told that he needed to follow any procedures set by Skadden attorneys, and he worked under the supervision of Skadden attorneys. Other attorneys employed to work on the same project performed similar work and were likewise paid hourly rates that remained the same for any hours worked in excess of forty hours per week.

Lola did not perform much in the way of "professional" services, did he? Defendant says he was a licensed attorney engaged in the practice of law. The Second Circuit sides with Lola, saying that, as a matter of North Carolina law, where Lola lived and worked, he really was not exercising legal judgment in reviewing documents under Skadden Arps' direction. The Court says:

The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever—he alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion to dismiss, we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants. A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided. The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.

Did you catch that? The Court of Appeals says a machine could have performed Lola's duties. That's gotta hurt. These contract lawyers would probably rather be actually practicing law, not sitting in a windowless room reviewing boxes of documents. But the work is sufficiently unexciting and tedious that no one at the law firm wants to do it. So they hire lawyers to do the work on an hourly basis. While these lawyers may feel like they are not living up to their potential, they may be entitled to overtime under the FLSA.

Inmate's prison advocacy is protected by the First Amendment

The plaintiff in this case was an inmate at Fishkill Correctional Facility, where he was a member of the prison's Inmate Liaison Committee, advocating on behalf of other inmates. He claims he suffered retaliation for his advocacy in the prison. Although the district court dismissed the case under Rule 12, the Court of Appeals says he has a case.

The case is Dolan v. Connelly, decided on July 23. Dolan wins this appeal pro se. He says that, because of his advocacy, the guards "searched and confiscated Dolan’s prison law library computer" and "filed a false misbehavior report against Dolan for use of unauthorized password‐protected files." This landed Dolan in solitary confinement, where he stared at the wall. In the end, Dolan was cleared of this misconduct, prompting this Section 1983 lawsuit.

The question here is whether plaintiff's advocacy as a member of the Inmate Liaison Committee is protected First Amendment activity for which he cannot suffer retaliation. The Court of Appeals (Pooler, Hall and Jacobs) puts it this way:

While we have not held specifically that a prisoner engages in constitutionally protected conduct by carrying out the duties of a member of an ILC, it is well established that “retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.”

The Court rules in plaintiff's favor on this issue. "Dolan’s alleged actions as an ILC representative are similar, if not identical, to the grievance‐related activity already established as constitutionally protected conduct. Accordingly, we now hold that retaliation against a prisoner for filing or voicing
grievances on behalf of a prison population as a member of an inmate grievance body, such as the ILC, 'violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments.'”

The case is therefore remanded to the district court. The Court of Appeals also says plaintiff is entitled to counsel to litigate his claims. 

Pro se inmate wins appeal against U.S. Department of Justice

The Court of Appeals has ruled that a federal inmate has enough evidence for trial on the claim that jail officials were deliberately indifferent to his serious medical needs. The inmate wins his appeal pro se against the big guns in Washington, D.C.

The case is Rodriguez v. Maneti, a summary order decided on July 10. Plaintiff had a knee injury. The district court said plaintiff had enough evidence for trial and that defendant was not entitled to qualified immunity. That qualified immunity ruling allows defendant to file an immediate appeal to the Second Circuit, which sides with the plaintiff.

We look at the inmate's version of the facts in deciding if he has enough evidence for trial, and if the defendant has a legitimate qualified immunity argument. As stated by the Court of Appeals (Pooler, Lohier and Carney), "Defendant was aware that Plaintiff’s knee injury caused him chronic pain and that intermittent knee locking led to a periodic inability to walk. Plaintiff also produced evidence that Defendant denied or delayed surgery approval for over a year after learning that Plaintiff’s treating physician, at least, recommended surgery to alleviate Plaintiff’s symptoms."

The Court notes that "At the time of the alleged violation, it was clearly established that 'that the
Eighth Amendment forbids not only deprivations of medical care that produce physical torture
and lingering death, but also less serious denials which cause or perpetuate pain.' Taking the record in the light most favorable to Plaintiff, we therefore conclude that a reasonable juror might find that a reasonable official would have realized that denying Plaintiff’s surgery request would 'cause or perpetuate [his] pain' for an intolerably long period."

Finally, the Court of Appeals says, the jury could find that defendant knew about but disregarded an excessive risk to plaintiff's health by denying his surgery request. The Jail acted contrary to the recommendation of the orthopedic surgeon to whom the Bureau of Prisons had referred plaintiff. This was not a mere disagreement with plaintiff about the appropriate course of action. Instead, the jury could find that medical professionals would "find it obvious" that plaintiff needed the treatment.

When does an intern deserve to get paid under the FLSA?

From time to time I see a news article about whether interns should be paid for their work. The Court of Appeals has now weighed in on this issue, setting forth a multi-part test to determine whether interns have any rights under the Fair Labor Standards Act.

The case is Glatt v. Fox Searchlight Pictures, decided on July 2. This case was certified as a class action for all interns who worked for defendant from 2005 through 2010. The named plaintiffs were hired as interns and did a little bit of this and a little bit of that for the company, i.e., handling publicity, taking out the trash, photocopying, making deliveries, and so on. The question for the Second Circuit is "under what circumstances [must] an unpaid intern ... be deemed an 'employee' under the FLSA and therefore compensated for his work."

After reviewing a Department of Labor policy guideline from 1967 and a Supreme Court ruling from 1947, the Second Circuit (Walker, Jacobs and Wesley) formulates the standard, but not before noting the position advanced by each side:

The plaintiffs urge us to adopt a test whereby interns will be considered employees whenever the employer receives an immediate advantage from the interns’ work. ... The defendants urge us to adopt a more nuanced primary beneficiary test. Under this standard, an employment relationship is created when the tangible and intangible benefits provided to the intern are greater than the intern’s contribution to the employer’s operation.

 ...

[W]e agree with defendants that the proper question is whether the intern or the employer is the primary beneficiary of the relationship. The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work. Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.

Here is the legal standard that the Second Circuit adopts for these cases:

In the context of unpaid internships, we think a non‐exhaustive set of considerations should include:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions.

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Applying these considerations requires weighing and balancing all of the circumstances. No one factor is dispositive and every factor need not point in the same direction for the court to conclude that the intern is not an employee entitled to the minimum wage. In addition, the factors we specify are non‐exhaustive—courts may consider relevant evidence beyond the specified factors in appropriate cases.

Courts love multi-part tests to solve legal problems. Since no single factor is dispositive, it will take years for litigants and courts to work through this legal standard. The first judge to do so will be the district court which first handled this case. The order granting plaintiffs partial summary judgment is vacated and the case is remanded to the judge to decide the case again. The order certifying the proposed class action is also vacated, and the district court must take up that issue again, as well.

Supremes articulate objective test for pretrial detainee excessive force claims

The Supreme Court's 2014-15 term made big news in recognizing the right to same-sex marriage and upholding a central component of ObamaCare. But it did other things as well.In this case, the Court made it easier for pre-trial detainees to win their excessive force claims.

The case is Kingsley v. Henderickson, decided on June 22. Plaintiff was arrested on a drug charge and was awaiting trial. He was detained in the county jail. A few officers beat him up; plaintiff claims they slammed his head into concrete for no reason. The case went to trial and plaintiff lost. He appeals to the Supreme Court by challenging the jury charge, which asked whether the officers subjectively intended to use too much force. The Court disagrees with that charge, holding that the legal standard for pretrial detainees is whether the force used by the officers was objectively unreasonable.

The objective standard draws from Supreme Court authority in prior cases. In Bell v. Wolfish, the Court said, "in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not 'rationally related to a legitimate nonpunitive governmental purpose' or that the actions 'appear excessive in relation to that purpose.'” The Court adds:

The Bell Court applied this latter objective standard to evaluate a variety of prison conditions, including a prison’s practice of double-bunking.In doing so, it did not consider the prison officials’ subjective beliefs about the policy. Rather, the Court examined objective evidence, such as the size of the rooms and available amenities, before concluding that the conditions were reasonably related to the legitimate purpose of holding detainees for trial and did not appear excessive in relation to that purpose.

Since correctional institutions already train their officers to comply with an objective reasonableness standard, the standard here is workable, Justice Breyer says, and the objective test protects an officer who acts in good faith in light of the difficult job associated with running a corrections institution. 

Circuit grants habeas relief to robbery convict

Convicts like to blame their lawyers. So they become experts at habeas corpus and use the prison law library. Most of these cases fail. This one succeeded.

The case is Lynch v. Superintendent Dolce, decided on June 18. Lynch was convicted of first-degree robbery. To convict someone of that crime, the prosecution has to prove the defendant possessed a dangerous instrument at the time of the crime. Lynch's lawyer asked the trial judge to charge the jury on that element, but the trial court declined to do so. After Lynch was found guilty, he took up an appeal.

Things went awry on appeal. Lynch's lawyer did not argue on appeal that the verdict was wrong because the trial court did not properly charge the jury. Lynch lost the appeal, and brought this habeas corpus action, which the federal district court denied. The Court of Appeals said Lynch's appellate counsel denied him effective assistance of counsel, and that the habeas petition should have been granted.

Some interesting backstories to this case. First, Lynch did bad things. He robbed a woman and threatened her life in the presence of her children outside a Family Dollar store. Lynch's alibi was that he was somewhere else buying a gun which the police found on his person upon arrest for the robbery. That's quite an alibi.

In addition, for reasons that no one can explain, it took five years for Lynch's appellate counsel to perfect the appeal. Was the file sitting in a corner in counsel's office gathering dust while counsel found a more interesting case to work on?

Rather than assert a winning appellate argument about the elements of dangerous-instrument robbery, counsel raised weaker arguments. Lynch then filed the habeas action in state court to throw out the verdict before filing the habeas petition in federal court. Although the New York Court of Appeals had issued a ruling on point on the dangerous-instrument issue, the State Appellate Division affirmed the appeal.

Like I said, Lynch did bad things. The Second Circuit (Lynch [no relation], Leval and Droney) notes that Lynch's other convictions for second and third degree robbery were "well deserved" in light of evidence that he forcibly stole from a young mother and assaulted her in front of her children.

Supreme Court wants strict content neutrality on municipal sign laws

The Supreme Court takes up a municipal sign law case for the first time in many years, holding that municipalities cannot treat signs differently on the basis of content, even if they did not specifically intend to favor or disfavor certain messages. (Having handled cases like this over the years, I had a keen interest in this case).

The case is Reed v. Town of Gilbert, decided on June 18. This Arizona town had a comprehensive sign law, like most towns. Campaign and social message signs enjoyed greater signage rights than directional signs. The plaintiff, a small church, needed those signs to let people know the location of their services. The directional signs could not be posted for the same time duration as the other signs. The church sued under the First Amendment, arguing that the sign law contained a content-based signage rights in violation. The Ninth Circuit rejected that argument, holding that the First Amendment was not breached because the Town did not intend to favor one class of signs over another.

The Supreme Court disagrees with the Ninth Circuit. Adopting an absolutist position on this issue, Justice Thomas says it does not matter what the Town specifically intended in classifying signs differently. We look at the sign law's effect on the placement of signs in determining whether the law violates the First Amendment. "The restrictions in the Sign Code that apply to any given sign ... depend entirely on the communicative content of the sign." Here is why it matters:

If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.

Since the sign law regulates on the basis of content, the Town must show that it does so for a compelling reason. Otherwise the law is struck down. The Court says the Town "has offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town’s aesthetic appeal and traffic safety." These will not cut it, as they are under-inclusive, meaning that this justification is not applied across-the-board to other signs that might also create eyesores and traffic distractions. The reasoning:

Starting with the preservation of aesthetics, temporary directional signs are “no greater an eyesore,” than ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem.

The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not.The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideologicalsign seems more likely to distract a driver than a sign directing the public to a nearby church meeting.

Circuit sustains $616,000 disability retaliation judgment

With little fanfare, the Court of Appeals has sustained a $615,964 judgment in a disability retaliation claim, rejecting the employer's arguments that the jury had no basis to find that an HIV+ employee was fired because he objected to disability discrimination at work.

The case is Munoz v. The Manhattan Club Timeshare, a summary order issued on June 17, two days after the appeal was argued. Along with Gregory Antollino and Richard Cardinale (who both tried the case), I represented plaintiff on appeal. The Second Circuit ruling says little about the case. The district court denied the Club's post trial motions this way:

Muñoz has presented evidence sufficient for a reasonable jury to conclude—as the jury in this case did—that he was fired because he sought an accommodation for his protected disability. For example, Muñoz has offered evidence that TMC employees referred to him as a "complainer" a couple of months after he asked for an accommodation. TMC offered evidence that this comment did not refer to Muñoz and that it may not have been referring specifically to Muñoz's requested accommodation. But the jury was not required to believe TMC's evidence because it was contradicted by testimony from other TMC employees. Similarly, Muñoz has put forth evidence that he was an excellent employee. TMC countered that evidence with evidence that Muñoz was not such a good employee, but, again, the jury was not required to believe that evidence. A reasonable juror could have concluded that Muñoz was an excellent employee, which is circumstantial evidence that he was terminated in retaliation for his protected activity— particularly where, as here, other employees with performance problems were not terminated. Finally, TMC points to the ten-month gap between Muñoz's initial request for an accommodation and his termination as grounds for judgment as a matter of law. But Muñoz has offered evidence that his termination was the capstone to a longer campaign of retaliation that began shortly after his complaint. This is enough for reasonable jurors to conclude that Muñoz was fired in retaliation for his protected activity.

The Court of Appeals (Raggi, Jacobs and Lynch) also sustained the damages award: $185,000 for pain and suffering and $347,500 in punitive damages. As presented by defendant, the case narrative was that plaintiff was a bad worker before and after he complained about discrimination, and that he was was fired 10 months after complaining -- too long to draw a retaliatory inference. Plaintiff argued that defendant inflated allegations of poor job performance, and he put on witnesses who said he was a good worker all along. He also argued that a memo purporting to be an anonymous customer complaint about plaintiff's demeanor was forged by management as a means to terminate his employment. As for the 10-month gap, the jury could have found that management had subjected him to relatively minor retaliatory afterwards, culminating in his termination. 

Brady violation wins defendant habeas relief

It always interests me when a convicted defendant wins a habeas corpus petition. It means he was found guilty in a state court of a crime but the conviction was unconstitutional. It often takes a federal court years later to find the conviction was unconstitutional. Same case, contrary results in different courts.

The case is Lewis v. Connecticut, decided on May 14. Lewis was convicted of murder solely on the testimony of Ruiz. But unknown to Lewis, Ruiz had repeatedly denied knowledge of the murders and implicated Lewis only because the police promised to let him go if he admitted being the getaway driver and implicated Lewis and someone else. Lewis did not know this because, in violation of Brady v. Maryland, the prosecution did not turn over this information to his lawyer prior to the criminal trial. (This information about Ruiz came out a few years after Lewis was convicted, during a court hearing that challenged the conviction of Lewis's co-defendant).

The district court granted Lewis's pro se habeas petition, and the Court of Appeals (Walker, Winter and Cabranes) affirms. The state court conviction violated clearly-established Supreme Court authority. Brady is a Supreme Court ruling from the 1960s. As you probably know from the movie My Cousin Vinny, the prosecution has to turn over all evidence favorable to defendant even if the defendant does not ask for it. So the law was clearly established. While the state court in affirming Lewis's conviction said that all exculpatory information was revealed to him prior to trial, the Court of Appeals says this was simply not true. The good stuff from Ruiz was not turned over to Lewis.

In the end, this information about the nature of Ruiz's involvement in the case would have made a difference at Lewis's trial. Ruiz was the state's key witness at trial. What jury would believe his account if it knew the truth about Ruiz's account, that he was promised a break if his implicated Lewis, especially since Ruiz told the police he knew nothing about the murder? This would have made for great impeachment material at trial. As the Court of Appeals says, this information constituted "credible evidence that Ruiz simply parroted information supplied by an unscrupulous police officer" and it "undermines Ruiz's credibility and thus any reasonable confidence in the outcome of the trial."

When does the one-year SOL for habeas corpus petition start?

You have one year to file a habeas corpus petition in challenging the constitutionality of your criminal conviction. In this case, the Second Circuit asks when that one year clock begins to run.

The case is Rosa v. United States of America, decided on May 13. Rosa was convicted on charges relating to child pornography. His conviction was affirmed on appeal and the Supreme Court denied certiorari. That certiorari denial normally triggers the one-year statute of limitations. Here, though, Rosa filed a motion with the Supreme Court to rehear the denial of his certiorari petition. Rosa argues that the one-year statute of limitations starts when the Supreme Court denied that motion.

Other Circuits have already decided this issue. They hold that the one-year time limit starts when the Supreme Court denies certiorari, not when it denies the motion to rehear that denial. The Second Circuit (Walker, Raggi and Droney) agrees with that reasoning. The one-year statute of limitations starts when the conviction becomes final. The Supreme Court says finality attaches when that Court affirms a conviction on the merits on direct review or denies a petition for certiorari. The Second Circuit says the certiorari petition is resolved when the petition is denied. The rehearing petition "does essentially nothing with respect to ... the denial of certiorari," so that "denial of certiorari is not delayed by a petition for rehearing of the certiorari denial."

Inmate suicide loses on qualified immunity grounds

The Supreme Court uses an inmate suicide case to remind us how hard it is to hold individual government defendants liable in constitutional cases whey they can assert qualified immunity, a legal doctrine that shields them from litigation when the state of the law is not clearly-established at the time of the violation.

The case is Taylor v. Barkes, decided on June 1. After the inmate killed himself, his family sued jail officials, claiming they failed to supervise and monitor the private contractor that provided the medical treatment—including the intake screening—at the Institution. The case does not get out of the box because of qualified immunity.

This case was not argued at the Supreme Court, which issues a per curium ruling after reading the briefs. Regular blog readers know that qualified immunity does not create automatic protection for government defendants. But for plaintiff to win the case, he has to show the defendants violated clearly-established constitutional rights. The Court says the defendants are immune because court rulings are not clear about this issue, which means the defendants were not aware they were violating the inmate's rights. The Court says:

No decision of this Court establishes a right to the proper implementation of adequate suicide prevention protocols. No decision of this Court even discusses suicide screening or prevention protocols. And “to the extent that a ‘robust consensus of cases of persuasive authority’” in the Courts of Appeals “could itself clearly establish the federal right respondent alleges,” the weight of that authority at the time of Barkes’s death suggested that such a right did not exist.

See how narrow the clearly-established right has to be? Even if the court thinks the plaintiff's rights were violated in hindsight, if the law was not clear at the time, then the plaintiff cannot recover damages.

Pay attention to how the Court frames the issue. It says no decision of the Supreme Court speaks to this issue.The Second Circuit considers whether the decisions of that Circuit clearly-established the right. Most other Circuits use the same framework. But the Supreme Court has never told us what body of law to draw from in determining whether a right is clearly-established. It is possible that if the Supreme Court ever takes up that issue -- and it will, someday -- it will say that the only way to know if an area of law is clearly-established is by looking to Supreme Court rulings, and not cases from the Courts of Appeal.

Inmate wins Iqbal appeal

If you are a federal practitioner, the headline will prompt a double-take. For the rest of you, know this: Iqbal is a Supreme Court decision that makes it easier to dismiss lawsuits that do not allege plausible claims. And inmates rarely win their cases.

The case is Dotson v. Fischer, a summary order decided on June 2. Dotson said he was denied adequate medical treatment in state prison and retaliated against for complaining about it. He says that, in violation of the Eighth Amendment, prison medical authorities denied an urgent recommendation that he receive surgery to remove a cyst in his ear, prolonging his severe symptoms. One doctor did a lousy job with the surgery, and a jail official put Dotson in keeplock in retaliation for his grievances over the medical treatment. The district court dismissed the case. The Court of Appeals brings it back.

Iqbal requires detailed and plausible allegations against defendants. The Second Circuit (Parker, Sack and Carney) says the complaint "plausibly alleges a serious medical need. Dotson alleges that a CAT scan revealed a cyst in his left ear, and that Nurse Practitioner Jennifer Wrest recommended surgery and requested an “urgent” level of attention. Over the year following that 'urgent' recommendation, while the recommended surgery was delayed, Dotson complained on numerous occasions of 'vertigo, blinding headaches, extreme pain in his left ear, and increased hearing loss.'  When the cyst was finally removed, one year later, it was of 'significant size.'" These allegations are enough to show plaintiff was in "extreme pain."

The complaint also establishes that the defendants acted with deliberate indifference to plaintiff's medical needs. "Dotson asserts that Drs. Dinisio and Koenigsmann reviewed Wrest’s evaluation and recommendation that his condition demanded 'urgent' care and rejected it, apparently without causing him to be examined again in person or taking any further step. ... Allegations of delayed medical care may support a finding of deliberate indifference to a serious medical need, and allegations that delayed treatment resulted in serious harm may bear on the reasonableness of an inference of a defendant’s knowledge of the risks to which he or she subjected the plaintiff. We believe Dotson’s allegations suffice at this early stage of the litigation."

Plaintiff also gets back his First Amendment claim. "Although Dotson’s pleadings on this matter are not a model of clarity, they suggest sufficient temporal proximity between Dotson’s complaints of inadequate medical care and Sticht’s decision placing Dotson in keeplock to support Dotson’s retaliation claim at this pleading stage."

Inmates have rights, too

Inmates have the constitutional right to out-of-cell exercise while in jail. The jail can restrict the inmate's exercise for security reasons. In this case, the inmate says that jail officials in Connecticut had a policy of requiring inmates with disciplinary problems to be handcuffed behind their backs during their out-of-cell recreational periods.

The case is Gardner v. Murphy, a summary order issued on June 2. The defendants tried to have the case dismissed on qualified immunity grounds, but the Court of Appeals allows the case to proceed. This raises my eyebrows since the Second Circuit has been dismissing many cases on qualified immunity grounds lately.

Public defendants are immune from suit if the law was not clearly-established at the time of the violation. You don't need a case on all-fours to show the law was clearly-established, but the constitutional violation must have been sufficiently apparent to put public employees on notice that they are breaking the law. Reviewing the case law governing inmate exercise, the Court of Appeals frames it this way:

Taken together, our earlier decisions have clearly established the right for inmates to have some meaningful opportunity for exercise unless the prison has a legitimate safety justification and has adequately considered feasible alternatives. The district court in this case defined the clearly established right similarly and therefore correctly stated “the level of generality at which the relevant ‘legal rule’ is to be identified.”

The question here, then, is whether reasonable persons in defendant's position would have understood that their conduct violated clearly-established law.For purposes of this appeal, the Second Circuit assumes there was no valid safety rationale to justify placing plaintiff in handcuffs during recreation time. In light of that, the Court says,

if it finds unpersuasive a proffered safety justification, a reasonable jury could readily conclude that a corrections official acted unreasonably by permitting an inmate to exercise only in restraints. After all, we do not see how a prison policy that required every inmate to remain in restraints during out-of-cell exercise could comport with the clearly established scope of the Eighth Amendment as to a particular inmate, unless there were a persuasive safety justification for that inmate’s restraints.