Tick-borne disease case heads to Connecticut Supreme Court

This is a sad case about a schoolgirl who went on a school-organized trip to China and contracted tick-borne encephalitis. Her family sued the school for negligence, and the jury awarded them $41.5 million in damages, including $31.5 million in non-economic damages. The verdict is vacated for now so that the Connecticut Supreme Court can decide if we wants these kinds of lawsuits to proceed.

The case is Munn v. The Hotchkiss School, decided on August 3. The school did not warn Cara Munn or her family that you can get this disease in China. Cara and her friends went off the beaten path while exploring China and got bitten by a tick. Because of the illness, Cara lost her ability to speak and has difficulty controlling her facial muscles, causing her to drool. She has also lost some cognitive function.

The Court of Appeals (Walker, Lynch and Lohier) thinks the Connecticut Supreme Court should review this case before the Second Circuit issues a final ruling. Here's why. Any first year law student will tell you there are four basic elements to any tort claim: duty, breach, causation and harm. In plain English, if you breach a legal duty to someone and cause foreseeable injury that causes damages, you are liable for a tort. If Freddie is too lazy to shovel his sidewalk after a snowstorm and someone slips and falls and breaks his leg, then Freddie is liable because he knew damn well that any icy sidewalk could foreseeably cause that result.

The Second Circuit thinks the School had a duty to warn the Munns about the risk that Cara might get the disease if she got bitten by the tick. But that does not end the inquiry. Under Connecticut law, we also ask if "on the basis of a public policy analysis, ... whether the defendant's responsibility for its negligent conduct should extend to the consequences or particular plaintiff in this case." Put another way, is it in society's interests to allow the Munns to recover damages for negligence like this? Sadly for the Munns, it may not be. The Court says:

Courts place a high value on recreational activities for children, even if they sometimes create safety concerns. Although the present case does not involve competitive sports, it also implicates important questions of public policy because of the benefits of educational trips for children.

...

[A]s Hotchkiss and several amici point out, it is unreasonable to expect a trip organizer to warn students about or protect them against every danger. Field trips are intended to expose children to situations outside of their comfort zones and of the organizers’ control. Such trips thus naturally entail a certain level of risk. Here, the risk of contracting tick‐borne encephalitis was undeniably remote. No American had ever before contracted TBE in China. Thus, although travelers may generally expect a school to warn about or protect against dangers, including serious insect‐borne diseases, no one could have expected that Munn would contract TBE.

Second, international trips and outdoor activities, while sometimes posing substantial health and safety risks, offer important benefits to their participants. The public benefits of international education and student exchanges are written into Connecticut statutory law.

As you can see, there are competing societal values at stake here. If we allow parents to sue a school for this kind of negligence, it may reduce the number of educational excursions that would normally benefit children. And so on. As these issues are unique to Connecticut law, the Second Circuit sends to case to the Connecticut Supreme Court for them to work it out. When they do, the case returns to the Court of Appeals for a final ruling.

No expert costs available under the Fair Labor Standards Act

Many labor and employment plaintiffs have no money to pay their lawyers. The law recognizes this, allowing plaintiffs' lawyers to recover their attorneys' fees if they win the case. Once the plaintiff wins, her lawyer files a motion with the court detailing the time she spent on the case and her hourly rate. Counsel may also recover out-of-pocket costs. But what about expert witness fees?

The case is Gortat v. Capala Brothers, decided on July 29. Plaintiffs won their FLSA overtime claim against defendants, recovering nearly $300,000 in damages. Their lawyer moved for attorneys' fees and costs, including expert witness fees in the amount of $10,425. Plaintiffs got over $500,000 in attorneys fees and another $68,000 in out-of-pocket costs, making me wonder why their tried to recover "only" $10,000 in expert fees on appeal. Probably because defendants appealed from the judgment also and plaintiffs filed a cross-appeal because ... why not?

The Court of Appeals (Calabresi, Straub and Livingston) notes that "The Supreme Court has made clear on multiple occasions that, absent explicit statutory authorization, a district court may not award reimbursement for expert fees." Some civil rights statutes authorize the recovery of these fees, and some do not. This is because "costs" does not mean "expert fees," even though the uninitiated may think that "costs" means any financial layout, which would seem to include expert costs. They do not. Congress has to specifically authorize them for plaintiff's counsel to recover them.

Is there any reason why Congress would authorize the recovery of expert costs under some statutes and not others? Is Congress even thinking about this when it drafts a statute? In other words, is it by design that some laws provide for this recovery while others do not? I cannot answer these questions. 

As the FLSA does not explicitly authorize the recovery of expert costs, plaintiff in this case cannot recover them. The case is remanded for the district court to determine if expert costs are recoverable under the state labor laws. 

Videotaped excessive force claim goes to jury

This my favorite Section 1983 case of the year. A divided Court of Appeals holds that a jury must determine whether an Occupy Wall Street protester has an excessive force claim against two police officers who pepper-sprayed her after she refused to give her name and resisted arrest outside a Starbucks at 5:00 in the morning.

The case is Brown v. City of New York. Brown tried to enter Starbucks because she had to go to the bathroom. The Starbucks was closed, and an employee called the police because a noisy crowd, bladders a-bursting, was pounding on the door. When the officers arrived, they asked plaintiff for her identification without explanation, which she declined to provide. The officers then arrested Brown, and after she resisted the handcuffs, they took her to the ground, where she continued to resist until the officers pepper-sprayed her twice. At that point, she was cuffed and taken to the police station.

I think that excessive force claims are the most shocking civil rights violations, because true excessive force means the police are abusing their authority in public and injuring a civilian without good reason. But that is also why these cases are hard to win; we all personally know police officers and cannot imagine them using excessive force, and most of us think that most officers are trying to do a good job. Here is the legal standard for evaluating an excessive force claim, stemming from the Supreme Court's Graham v. Conner decision:

Determining excessiveness requires "a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." This balancing, the Court noted, "requires careful attention to the facts and circumstances of each particular case, including" the following three factors:

1. "[T]he severity of the crime at issue,"

2. "whether the suspect poses an immediate threat to the safety of the officers or others," and

3. "whether he is actively resisting arrest or attempting to evade arrest by flight."

And, ... the "'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. The Court also made clear that the standard is one of objective reasonableness, and the officer's state of mind, whether evil or benign, is not relevant.

This "totality of the circumstances" test means that many excessive force claims go to trial, as the court cannot resolve these questions on a cold record without live testimony. Juries are better able to sift through these issues than a judge sitting in his chambers. In this case, though, it's not just deposition testimony that tells the story but video footage. The Court of Appeals (Newman and Calabresi) says the case goes to trial. The offense for which the officers initially arrested Brown (disorderly conduct, for the loud banging on the Starbucks door) was relatively minor. She did not try to run away or threaten the officers. While the videotape shows Brown was in fact resisting arrest, the Second Circuit's reasoning is interesting:

The officers could be entitled to a summary judgment only if there existed a per se rule that an arrestee’s refusal to submit to the easy application of handcuffs always permitted police officers to use substantial force, including taking a person to the ground and incapacitating her with pepper stray, to accomplish handcuffing. We know of no such rule. Indeed, by focusing only on resistance to the arrest, such a rule would disregard the three-factor analysis that the Supreme Court required in Graham. Even resistance sufficient to result in conviction for resisting arrest does not preclude a finding of “excessive force in effectuating the arrest.”

...

Here, on the undisputed facts, even shaded with the officers’ account of the episode, no reason appears why, with Brown standing, each officer could not have simply held one of her arms, brought it behind her, and put handcuffs on her wrists. Or they could have simply surrounded her, at least for a few moments, making it clear that she could not leave until she submitted to handcuffing. We do not mean to imply that the availability of a less aggressive way of accomplishing an arrest necessarily means that the technique that was used is thereby shown to have been excessive. Police officers must be entitled to make a reasonable selection among alternative techniques for making an arrest. But when the amount of force used by two police officers involves taking a 120-pound woman to the ground and twice spraying her directly in the face with pepper spray, the availability of a much less aggressive technique is at least relevant to making the ultimate determination of whether excessive force was used. The assessment of a jury is needed in this case.

What makes the case even more interesting is that Judge Jacobs' lengthy dissent calls out the majority for being too soft on Brown and too critical of the police for not subduing her in other ways. Jacobs posts three videos online so we can all see how she actively resisted arrest. Apart from making fun of Occupy Wall Street protesters, endorsing the officers' sarcastic comments to Brown when she asked where she could go to the bathroom (they told her to "piss in the park") and accusing Borwn (through post-arrest text messages) of "claiming the glamour of having spent a night in jail after having resisting arrest," Judge Jacobs revives his oft-repeated claim that cases like this will place the defending officers' personal finances at risk and potentially force them to spend their childrens' college funds to pay out the liability judgment. In addition, Judge Jacobs provides a blow-by-blow account of Brown's interaction with the officers. Judge Jacobs concludes with this:

The only excessive features of this case are the elaborate constitutionalization of the routine arrest of a disorderly individual, the unfair attack on the professional reputation of two NYPD officers, the absurd waste of judicial time that has ensued and will follow on remand, and the imposition on the valuable time of jurors.

 The majority objects to Judge Jacobs' dissent in a couple of ways. First, as for the "piss in the park" comments, the majority notes that police officers are supposed to be courteous, not sarcastic, in dealing with pedestrians. More importantly, the majority takes issue with the idea that police officers could be ruined financially from a nonsense settlement or jury verdict. Judge Newman writes:

The dissent speculates, without any support in the record, that, in the event that a jury finds the police officers liable, the judgment will be paid out of their children’s college funds. For support, the author of the dissent cites only his own previous speculation, see Gonzalez v. City of Schenectady, 728 F.3d 149, 162 (2d Cir. 2013). A far more likely speculation is that a payment, if any, will be made by the City after a settlement. See, e.g., “New York City Settles With 6 Occupy Wall Street Protesters Pepper-Sprayed by the Police,” New York Times, July 6, 2015. And, if a jury were to hold the officers liable for damages, payment is almost certainly going to be made by the City by way of indemnification or by the police union. See Richard Emery & Illan Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 Fordham Urban L. J. 587 n. 2 (2000). A study for the six years from 2006 to 2011 revealed that $348,274,595.81 was awarded in civil rights settlements and judgments against New York City police officers, of which $114,000 (0.03 percent) was required to be paid by police officers, and the study does not indicate whether some or all of even this amount was paid by the police union. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 913, 962 (2014).  

A few other thoughts. The videos are interesting not only because we can see what happened, but because they were probably made by civilians who decided to use their iPhones to record the incident. You can see a few of them standing with their cell phones out. Part of the video breaks away to someone who provides a brief summary of what happened before the cameras began rolling. One bystander is telling the officers how to do their jobs. Others are loudly objecting to the officers' actions ("What's wrong with you people?"). Had they kept it up, some of these meddlers could have been arrested for Obstructing Governmetnal Administration. And we also see that the sidewalk outside Starbucks is totally disgusting with cigarette butts and other garbage all over, some of it perilously close to Brown's face as the officers held her down in trying to place handcuffs on her. 

Bergstein & Ullrich prevail in civil rights case against Orange County

 Judge: County investigators violated Constitution

5-year-old questioned without parents' consent

By Gittel Evangelist

Times Herald-Record

Aug. 21, 2015

• A federal judge ruled Wednesday that Orange County violated the U.S. Constitution when it questioned a 5-year-old girl about secondhand child-abuse allegations without her parents’ consent.

  Judge Sidney H. Stein of the Southern District of New York in Manhattan granted the girl’s motion for summary judgment against the county. The case will go to trial in January to determine damages, said Stephen Bergstein of the law firm of Bergstein & Ullrich in Chester, which represents the plaintiffs.

  Stein also ruled the jury must determine whether the Goshen School District violated the Constitution when it allowed county caseworkers to question the girl at her school.

  The lawsuit, filed in 2010 by the girl and her parents, Marie Condoluci and Steven Phillips, arose when a state hotline received a call from Pastor Robin J. Hogle of Hopewell Presbyterian Church in Thompson Ridge, who said parishioner Thresa Falletta had concerns the parents were sexually abusing their daughter. Hogle cited a photo of the child wearing a mermaid costume, seen by Falletta on the family’s refrigerator, according to the suit. Falletta previously worked as a babysitter for the family, according to the lawsuit.

  On the basis of this account, the state hotline transmitted the report to Orange County Child Protective Services. CPS then assigned the case to the Orange County Child Abuse Investigation Unit.

  While the investigators did not believe the girl was in imminent danger, they questioned her in the assistant principal’s office at her school, without notifying the parents, Bergstein said. Investigators then searched the parents’ home without their consent.

  “The investigation into these flimsy allegations was intrusive and totally inappropriate,” Bergstein said. “The county had no basis to embarrass and humiliate the family by pursuing these allegations, and it went over the line when it took the child out of class in order to ask her embarrassing questions about child abuse without her parents’ knowledge.”

  Orange County spokesman Justin Rodriguez said, “The county will review its protocol based on the court’s decision. We strive to protect all children who need our services. Our Social Services Department will continue to act in the best interest of all children they serve.”

Theft of services/false arrest case goes to trial

False arrest cases are hard to win. The police can detain you for any reason so long as they have probable cause. Probable cause is not hard to establish. If the police have any objective basis to think you are violating any law, then the police have probable cause, and your lawsuit goes nowhere. This lawsuit goes somewhere.

The case is Simpson v. City of New York, decided on July 15. Simpson was about to board a city bus when the driver closed off the front entrance and made everyone enter through the rear door. Officer Nelson was on the scene and thought Simpson was cute, so he hit on her. She rebuffed his advances. He then charged her with theft of services, accusing her of trying to get on the bus without swiping her MetroCard. The district court granted the officer's motion for summary judgment. The Court of Appeals (Hall, Lynch and Carney) reverses, finding that Simpson has a case.

This case reminds us that, on a summary judgment motion filed by the defendant, we have to view the evidence in the light most favorable to the plaintiff. The district court failed to do that. It simply said the officer had probable cause to arrest plaintiff for theft of services because "'he saw [Ms. Simpson] board a bus through the rear doors, which were marked ‘no entry,’ without paying the fare,' concluding that this undisputed fact was 'sufficient to provide [Officer] Nelson with the belief that plaintiff intended to obtain bus
service without payment of the lawful charge.'” But there was more to the story, at least from plaintiff's perspective, which the district court overlooked. The Court of Appeals says "there is a genuine issue for a jury as to whether a reasonable officer in Officer Nelson’s position could have had reasonable grounds to believe that she intended to commit, or was committing, theft of services." In particular:

First, Officer Nelson was aware of the problems with the mechanical lift which blocked the front entrance to the bus, given that he was only an “arm’s length” from Ms. Simpson while she waited to board the bus. Next, by the same token, Officer Nelson was in a position easily to hear the bus driver direct passengers to “Go around, go around” to the back of the bus and also to witness the bus driver open the back doors. In fact, viewing the facts as we must, Officer Nelson would have had to have been visually and aurally impaired to miss this chain of events. Finally, according to Ms. Simpson, Officer Nelson observed Ms. Simpson board the bus and wait in line to pay her fare before arresting her.

You know the old saying, "There are two sides to every story"? This case illustrates that. The officer said he saw plaintiff use the back door when the other passengers boarded through the front door, raising questions about whether the front door really was inaccessible. That may be, but since plaintiff has a different account, summary judgment is improper because if the jury credits her account, she wins the case.

Police beating case goes to trial.

Excessive force claims are all around us. They are also in the news. Some of the claims have merit. We let the juries sort it out unless there is no way the plaintiff can win, and the trial court grants summary judgment. In this case, the trial court threw out the case. The Court of Appeals brings it back.

The case is Rogoz v. City of Hartford, decided on August 10. Plaintiff brought $50 worth of heroin and drove off when an unmarked police car approached and an unidentified man got out and walked toward him. Plaintiff drove away at a high rate of speed, not realizing the police were after him. When the police got to him, he complied and was made to lay on the ground with his hands behind his back. While he did not resist, the police fractured of of his ribs and his spine in two places.

Sounds like a great case, right? It may not be a great case, actually. The evidence set forth above is plaintiff's side of the story. The police have a different account, claiming plaintiff knew he was fleeing the police. Their lawyers moved for summary judgment, claiming the evidence compels only one conclusion and that plaintiff cannot win. The district court granted the motion. The Court of Appeals reverses and sends the case back for trial.

Along the way, the Court of Appeals (Kearse, Parker and Wesley) provides a thorough discussion of what summary judgment means. The Court does not break new ground, but it does compile from other cases all the language that makes it clear that trial courts (a) cannot weigh the evidence; (b) resolve credibility disputes or (c) view the evidence from the defendant's point of view. The Court also reminds us that excessive force claim are often fact-specific and do not lend themselves to summary judgment.

The Court also notes that defendants conceded many facts that would help plaintiff win the case:

the police officer defendants expressed in their brief on appeal "no material disagreements" (Watson brief on appeal at 5) with Rogoz's assertions that, before Watson broke his back and rib, Rogoz had "complied with each of the officers' commands" and had "not resist[ed] in any way" (Rogoz brief on appeal at 6). Based on these facts a jury could easily infer that Rogoz--out of his car, prone on the ground, and compliant when Watson jumped on his back--did not "pose[] an immediate threat to the safety of the officers or others" and was not "actively resisting arrest or attempting to evade arrest by flight."

The Court concludes:

Given the undisputed facts that on the highway, Rogoz had pulled over when he noticed the police vehicles, had complied with officers' orders to exit his car, and had complied with their orders to lie face down on the ground with his hands behind his back, and had done so without any show of  resistance, a jury could find that, by that time, there was no urgency that necessitated jumping on Rogoz's back. And if the jury were to find that Watson in fact proceeded to jump on Rogoz's back with such force that he broke Rogoz's rib and/or his spine, it could well find that Watson had used more force than was necessary. Of course, the jury is not compelled to find either that Watson jumped on Rogoz's back--an assertion by Rogoz that is conceded by the police officer defendants only "for the purpose of" defending "Summary Judgment" (Watson brief on appeal at 5-6)--or that the amount of force used by Watson in fact broke Rogoz's spine and rib, an issue that remains in dispute. But if Watson jumped on the back of the prone, compliant Rogoz, breaking his spine and rib, it is surely at least arguable that the force used was excessive.

No salary for volunteers who worked at Major League Baseball's FanFest

The Second Circuit on a regular basis reminds us that the Fair Labor Standards Act has a million exceptions to the rule that employees are entitled to the minimum wage and/or overtime pay. In this case, the Court says that unpaid volunteers who worked at Major League Baseball's Fan Fest in 2013 were not entitled to any compensation.

The case is Chen v. Major League Baseball Properties, decided on August 14. Under the FLSA, "the minimum wage provisions “shall not apply with respect to . . . any employee employed by an establishment which is an amusement or recreational establishment . . . if (A) it does not operate for more than seven months in any calendar year.” Was Fan Fest an amusement or recreational establishment? The Second Circuit says it was. Here are the facts, and only the facts:

In July 2013 Defendants organized a series of All‐Star Week festivities throughout New York City, the host city of that year’s Major League Baseball All‐Star Game. These included a race, concert, fantasy camp, parade, and an event called FanFest. Between July 12 and July 16, 2013, FanFest operated in the Jacob K. Javits Center ... . Defendants ... described FanFest as “the largest interactive baseball theme park in the world.” The venue floor map distributed to patrons proclaims that FanFest offers “[o]ver 450,000 [s]quare [f]eet to [h]it, [p]itch, [c]atch, [s]hop, [e]at & [l]ive [b]aseball.” Activities at FanFest included baseball themed video games, photo booths, a simulated baseball dugout and fields, baseball clinics, batting cages, music offerings, and autograph signing. In addition, a news item referenced in the Complaint notes that “[a] green carpeted replica baseball diamond” was constructed for the event. Memorabilia collections, a historical presentation on the Negro Leagues, and the world’s largest baseball were also on display.

Defendants staffed the 2013 All‐Star Week events primarily with volunteers – some two thousand in total. The volunteers carried out a range of duties including greeting customers, answering questions and providing directions, taking tickets, checking credentials, staffing activities, and distributing gifts. Chen alleges that although these individuals were identified as volunteers, they expected and received compensation in the form of free admission to events and in‐kind benefits such as t‐shirts, caps, drawstring backpacks, fanny packs, water bottles, baseballs, lanyards, free admission to FanFest for each volunteer and a guest, and a chance to win a pair of tickets to the All‐Star Game.

Remember when the All Start Game was just the All Star Game? When baseball's best players faced off  and it was the only time (pre-cable TV) an American League fan could see players from the National League and no one cared who won the game because it was just an exhibition? These days, Baseball Incorporated generates as much money as possible from these games, hosting a home run derby the night before, charging an arm and a leg for tickets and the games now count because the league that wins has home-field advantage in the World Series. We have forged ahead to the present, with Fan Fest and other spectacles.

Anyway, plaintiffs want a collective action to recover lost wages. They are not entitled to any. The Second Circuit says Fan Fest is "an establishment which is an amusement or recreational establishment" under the FSLA. Since it falls under the exception, plaintiffs get no money for their work, only joyous memories.

The Court reasons that "'establishment' for purposes of the exemption ... mean[s] a distinct, physical place of business as opposed to an integrated multiunit business or enterprise. Under the regulations, this definition is not limited to retail endeavors. While Chen "argues that although he physically worked at FanFest, he was an employee of Defendants Major League Baseball and the Office of the Commissioner of Baseball, who planned and controlled all aspects of FanFest’s operations," "This physical separation is determinative in deciding whether these business units constitute a single establishment or multiple ones. Where such business units are not located at the same premises, overlap in operations and personnel is immaterial to determining whether they are separate establishments."

To win this case, MLB must establish that  FanFest is plainly and unmistakably (1) seasonal and (2) a recreational or amusement establishment under the FLSA. FanFest meets the seasonality requirement. It is also a recreational or amusement establishment. It was certainly seasonal. In addition, as "FanFest was a 'sports event' and ... [was] a theme park,” it falls within the second exception also.

Court finds Obamacare religious accommodation provision does not violate freedom of religion

Obamacare comes to the Second Circuit in the form of a religious objection to the provision that allows religious organizations to opt-out of the birth control coverage provisions. The Court of Appeals rejects that challenge and rules against the religious plaintiffs.

The case is Catholic Health Care System v. Burwell, decided on August 7. Under the Affordable Care Act, employers have to provide coverage for all FDA-approved contraceptive methods. But religious organizations can opt-out of these requirements. In order to opt-out, they have to complete a one-page form and self-certify their religious objections. If that happens, then the employees get their contraceptive coverage from other sources without cost, through alternative mechanisms established by government regulations. In other words, Obamacare includes a built-in accommodation for religious organizations.

Plaintiffs challenge that accommodation provision under the Religious Freedom Restoration Act of 1993, which says the government needs a compelling interest for any law or rule that substantially burdens the exercise of religion. The compelling interest test is the kiss of death, so if the Court finds the opt-out provisions triggers the compelling interest test, then the plaintiffs win. The Court of Appeals writes:

Plaintiffs believe that by submitting the opt-out notification to the government or their third-party administrators, they are indirectly facilitating the provision to their employees of products and services that have contraceptive and “abortion-inducing” effects, an act which violates their religious beliefs. Thus, although the accommodation shifts the burden of providing contraceptive coverage to others once Plaintiffs avail themselves of the opt-out mechanism, Plaintiffs nevertheless contend that the regulatory scheme imposes a substantial burden on their exercise of religion.

In other words, even filling out the form under the religious accommodation provision facilitates the use of contraceptive services for plaintiff's employees. The Court further summarizes plaintiffs' objections this way:

Plaintiffs further argue that the objectively insubstantial burden of filing either the opt-out form or the letter to HHS is substantial because it renders them complicit in bringing about consequences forbidden by their religion, namely the provision of contraceptive coverage by the government and third parties. Although third parties ultimately bear the burden of providing contraceptive coverage, Plaintiffs contend that their participation is essential to this coverage. Plaintiffs argue that a substantial burden exists because the submission of the self-certification form or letter “triggers” or “facilitates” the provision of objectionable contraceptive services. Under this view, Plaintiffs’ acts of self-certification as religious objectors ultimately result in their third-party administrators providing contraceptive coverage to their employees.

In other words, since plaintiffs do not believe in these contraceptive services, filling out the form in itself violates their religious beliefs. The Court of Appeals (Pooler, Leval and Chin) holds as follows:

Accurately understood, the opt-out mechanism imposes on Plaintiffs only the de minimis administrative burden associated with completing the self- certification form or the alternative notice.” Viewed objectively, completing a form stating that one has a religious objection is not a substantial burden. To be sure, the notification required of Plaintiffs here certainly imposes some burden. But any imposition from completing the form falls well below the degree of substantial burdensomeness that has historically entitled a RFRA plaintiff ... to accommodation, or triggered strict scrutiny analysis.

Plaintiffs also argue that filling out the opt-out form renders them complicit in bringing about consequences forbidden by their religion, namely the provision of contraceptive coverage by the government and third parties." The Court rejects this argument also, stating that "a religious objector’s submission of the form or letter does not, as a legal matter, trigger or facilitate the provision of contraceptive coverage." Judge Pooler further explains:

Rather, contraceptive coverage occurs through operation of federal law. When third parties step in and provide contraceptive coverage after Plaintiffs opt out, they do so not because Plaintiffs have opted out, but rather because federal law requires or incentivizes them to provide such coverage. The accommodation functions not as a “trigger,” but rather as a means of identifying and exempting those employers with religious objections. Once Plaintiffs indicate their desire to have no involvement in the provision of contraceptive coverage, the government steps in and acts to ensure contraceptive coverage without any participation by Plaintiffs. Thus, Plaintiffs’ decision to opt out is not the cause of the ultimate contraceptive coverage; rather this coverage happens in spite of them.

Inmate sexual abuse may violate Eighth Amendment

Two inmates alleged that a corrections officer touched them sexually. They sued under Section 1983. The Court of Appeals says this kind of abuse violates the Eighth Amendment, and the case is reinstated.

The case is Crawford v. Cuomo, decided on August 11. As this case was dismissed under Rule 12 for failure to state a claim, the facts are straightforward. Corley says he "was visiting with his wife when Corrections Officer Simon Prindle ordered him out of the visiting room and sexually abused him. Prindle informed Corley that 'he was going to make sure Mr. Corley did not have an erection,' and after ordering Corley to stand against the wall with his feet spread apart, Prindle 'paused to fondle and squeeze [his] penis.'” Four days later, Prindle abused James Crawford, another inmate. "As Crawford was leaving the mess hall, Prindle stopped him and initiated a search. During the search, Prindle paused around Crawford’s crotch, 'grabbed' and 'held' his penis and asked 'what’s that?' Crawford responded: 'That’s my penis, man.' Prindle pushed his knee into Crawford’s back, pinning him to the wall, tightened his grip around the neck of Crawford’s sweatshirt, and told him to 'stay on the fucking wall' if he didn’t want Prindle to 'ram [his] head into the concrete.' Prindle continued to 'squeeze' and 'fondle' the area around Crawford’s penis and 'roam' his hands down Crawford’s thigh." Prindle also threatened to send Crawford to solitary confinement if he resisted the abuse. "When Crawford told Prindle that the search was not in accordance with search and frisk procedures, Prindle responded: 'You don’t have any rights in here. . . . I’ll run my hands up the crack of your ass if I want to.'”

In 1997, the Court of Appeals held in the Boddie case that "a single act of sexual abuse may violate the Eighth Amendment if ... it is entirely gratuitous and devoid of penological purpose." In other words, it is against the law to perform a sexual act on an inmate for no good reason. But in the Boddie case, the Court said the plaintiff did not have a case after a female corrections officer made a pass at plaintiff, touched his penis, made sexually suggestive comments and bumped into him "with her whole body vagina against penis." The Court of Appeals now says that Boddie might be decided differently today as times have changed in the nearly 20 years since Boddie was decided; society has further cracked down on inmate sexual abuse and the Eighth Amendment does take into account "contemporary standards of decency."

Here is the legal standard the Court of Appeals (Katzmann, Walker and Lynch) sets forth in this case:

To show that an incident or series of incidents was serious enough to implicate the Constitution, an inmate need not allege that there was penetration, physical injury, or direct contact with uncovered genitalia. A corrections officer’s intentional contact with an inmate’s genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer’s sexual desire or humiliate the inmate, violates the Eighth Amendment. Similarly, if the situation is reversed and the officer intentionally brings his or her genitalia into contact with the inmate in order to arouse or gratify the officer’s sexual desire or humiliate the inmate, a violation is self‐evident because there can be no penological justification for such contact. And even if contact between an officer and an inmate’s genitalia was initially justified, if the officer finds no contraband, continued sexual contact may be actionable.

If plaintiffs' accounts are true, they have a case against Prindle. If the allegations are not true, then this decision will always come up in a Google search if someone searchs Prindle's name. Think about that for a minute. Anyway, the case is remanded to the district court to consider whether Prindle is entitled to qualified immunity.

Salad anxiety claim fails in 2d Circuit.

The plaintiff is a young man who worked for a college in Connecticut. He worked for the food service but was fired. He alleges he was fired because of his disabilities, bronchitis and anxiety. He loses the case, and the Court of Appeals affirms.

The case is Smith v. Hogan, decided on July 22. The lawsuit alleges that plaintiff's bronchitis cost him his job. Working for the food service, he claimed that state law prohibited him from working with food because of his bronchitis. He left the food serving line without permission and was fired. After he brought the lawsuit, though, plaintiff changed his theory of the case, arguing that "he was terminated because of his anxiety resulting from being asked to work on the salad line." The Court of Appeals quotes from plaintiff's brief, describing plaintiff's "disabling condition" as being anxious about making wraps.

The problem is that the anxiety theory of plaintiff's case is not set forth in his complaint. To get around this omission, plaintiff notes that the anxiety theory is set forth in an affidavit that plaintiff attached to the complaint, part of 170 pages of exhibits attached to the complaint. Can the courts consider the affidavit in deciding whether plaintiff has a case? They cannot, the Second Circuit (Parker, Walker and Kearse) holds for the first time.

Rule 10(c) allows courts to consider "written instruments" that are attached to the complaint in resolving Rule 12 motions. Adopting the reasoning from a Third Circuit decision, the Second Circuit says "written instruments" has a technical definition. It does not mean any old document or paper that you attach to the complaint. Rather, "the types of exhibits incorporated within the pleadings by Rule 10(c) consist largely of documentary evidence, specifically, contracts, notes, and other writings on which a party's action is based." Since affidavits are not covered under that definition, the court cannot consider whether plaintiff's anxiety disorder led to this termination. The case is over. 

2d Circuit outlines Iqbal pleading under Title VII

The Court of Appeals tackles how Iqbal pleading standards govern Title VII discrimination/retaliation complaints in this lengthy opinion that finds the plaintiff has for the most part pleaded a cause of action.

The case is Littlejohn v. City of New York, decided on August 3. In Ashcroft v. Iqbal (2009), the Supreme Court said that lawsuits must plead plausible and not merely possible claims. The Court also said you cannot make conclusory allegations in drafting the complaint. But this was not the first time the Supreme Court had issued pleading rules in discrimination cases. In Swierkiewicz v. Sorema N.A. (2002), the Court said there is no heightened pleading standard in employment discrimination cases. And when it comes to pleading, the Court of Appeals says, we cannot forget the Supreme Court's McDonnell-Douglas v. Green (1973), which laid out the prima facie case that plaintiffs must establish in order to proceed with their lawsuits. Under McDonnell-Douglas, plaintiffs have a minimal burden in making out a prima facie case; after the employer rebuts the presumption of discrimination by articulating a neutral reason why the plaintiff got fired/demoted, etc., plaintiff most show that reason is pretext for discrimination.

As the Second Circuit sees it, the McDonnell-Douglas rules governing the prima facie case have to be reconciled with Iqbal. If McDonnell-Douglas says plaintiffs have a minimal burden in making out the prima face case, then what about Iqbal, which says the plaintiff set forth a plausible and nonconclusory case? And we have to deal with Swierkiewicz also, which rejects heightened pleading rules under Title VII. Here is how the Second Circuit (Droney, Leval and Lynch) handles it:

It is uncertain how the Supreme Court will apply Iqbal's requirement of facts sufficient to support plausibility  to Title VII complaints falling under the McDonnell Douglas framework. We conclude that Iqbal's requirement applies to Title VII complaints of employment discrimination, but does not affect the benefit to plaintiffs pronounced in the McDonnell Douglas quartet. To the same extent that the McDonnell Douglas temporary presumption reduces the facts a plaintiff would need to show to defeat a motion for summary judgment prior to the defendant's furnishing of a non-discriminatory motivation, that presumption also reduces the facts needed to be pleaded under Iqbal.

The Iqbal requirement is for facts supporting "plausibility." The Supreme Court explained that "[t]he plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." The question we face is what, in the Title VII context, must be plausibly supported by factual allegations when the plaintiff does not have direct evidence of discriminatory intent at the outset. Answering this question requires attention to the shifting content of the prima facie requirements in a Title VII employment discrimination suit. Recapitulating what we have spelled out above, while the plaintiff ultimately will need evidence sufficient to prove discriminatory motivation on the part of the employer-defendant, at the initial stage of the litigation—prior to the employer's coming forward with the claimed reason for its action—the plaintiff does not need substantial evidence of discriminatory intent. If she makes a showing (1) that she is a member of a protected class, (2) that she was qualified for the position she sought, (3) that she suffered an adverse employment action, and (4) can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation, then she has satisfied the prima facie requirements and a presumption of discriminatory intent arises in her favor, at which point the burden of production shifts to the employer, requiring that the employer furnish evidence of reasons for the adverse action. At this stage, a plaintiff seeking to defeat a defendant's motion for summary judgment would not need evidence sufficient to sustain her ultimate burden of showing discriminatory motivation, but could get by with the benefit of the presumption if she has shown evidence of the factors entitling her to the presumption.

. . .

In other words, absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent. The facts alleged must give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase of a Title VII litigation. The facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation.

How does this all affect Littlejohn? Her complaint alleges a prima facie case of employment discrimination because it permits the inference that she was demoted under circumstances creating an inference of discrimination, one of the four elements of the McDonnell-Douglas prima facie case (the other three being that she belongs to a protected class, was qualified for her position and suffered an adverse action). The Court says:

Littlejohn alleges that she was replaced by a white ACS employee, Fredda Monn, after she was demoted from EEO Director. Littlejohn also alleges that Monn was less qualified for the position. According to Littlejohn's complaint, Monn had "no prior EEO experience," as she "was previously the Director of the Accountability/Review Unit that had nothing to do with EEO matters" but rather "involved the comprehensive review of child welfare case practices." Littlejohn's factual allegations are more than sufficient to make plausible her claim that her demotion occurred under circumstances giving rise to an inference of discrimination. Accordingly, we hold that Littlejohn's complaint alleges sufficient facts to satisfy the requirements of Iqbal.

Littlejohn also makes out a retaliation claim. The Second Circuit holds that its new standard governing the pleading of Title VII disparate treatment cases also applies in retaliation cases. Good news for Littlejohn. Along the way, in order to decide if plaintiff engaged in protected activity, the Circuit addresses a new issue: when is an HR manager protected under Title VII for reporting discriminatory practices? The Court says:

 To the extent an employee is required as part of her job duties to report or investigate other employees' complaints of discrimination, such reporting or investigating by itself is not a protected activity under § 704(a)'s opposition clause, because merely to convey others' complaints of discrimination is not to oppose practices made unlawful by Title VII. But if an employee—even one whose job responsibilities involve investigating complaints of discrimination—actively "support[s]" other employees in asserting their Title VII rights or personally "complain[s]" or is "critical" about the "discriminatory employment practices" of her employer, that employee has engaged in a protected activity under § 704(a)'s opposition clause.

Since Littlejohn did not merely investigate or report others' complaints of discrimination but instead objected and complained to defendants about their discriminatory policies, effectively advocating for minority employees, she did engage in protected activity. "Littlejohn was not simply conveying others' complaints of discrimination to Mattingly and Baker or alerting them to Title VII's mandates; she was complaining about what she believed was unlawful discrimination in the personnel decision-making process during the ACS/DJJ merger. Her complaints of discrimination were protected activities under § 704(a)'s opposition clause."


Littlejohn also pleads a causal connection, or a link, between her protected activity and her demotion. She alleged that she objected to the discrimination through the day of her demotion. The district court misread the complaint in holding otherwise. Since she was demoted within days of her last complaint, Littlejohn makes out a prima facie case of retaliation under Title VII and Iqbal.


However, Littlejohn does not have a non-sexual harassment hostile work environment claim. While she alleges management treated her poorly at work, this poor treatment was not severe or pervasive enough.

Littlejohn's hostile work environment claim is predicated on the following allegations¹⁸: Baker made negative statements about Littlejohn to Mattingly; Baker was impatient and used harsh tones with Littlejohn; Baker distanced herself from Littlejohn when she was nearby; Baker declined to meet with Littlejohn; Baker required Littlejohn to recreate reasonable accommodation logs; Baker replaced Littlejohn at meetings; Baker wrongfully reprimanded Littlejohn; and Baker increased Littlejohn's reporting schedule. Baker also sarcastically told Littlejohn "you feel like you are being left out," and that Littlejohn did not "understand the culture" at ACS. These allegations could not support a finding of hostile work environment that is so severe or pervasive as to have altered the conditions of Littlejohn's employment.

Finally, while she alleges various sexual comments at work, since plaintiff did not check the right box in her EEOC charge, Littljohn cannot proceed with her sexual harassment claim. While plaintiff points to an unsworn letter to the EEOC that made reference to the sexual harassment, this was an additional claim of discrimination unrelated to the claims that she did set forth in the EEOC charge. As the letter did not clarify or amplify her existing claim, plaintiff did not preserve her right to bring that claim to federal court.

City not liable for inmate gang slashing

When is the jail responsible for fights between inmates? Can't these fights be prevented? I cannot answer the second question, but the Court of Appeals answers the first.

The case is Ross v. Correction Officers John and Jane Does, a summary order decided on July 20. Although he was arrested on a misdemeanor charge, plaintiff was placed in the maximum security block because of his criminal history and disciplinary record from prior jailings. Five inmates slashed him in the face in the early afternoon one day. The sole guard assigned to the cellblock was not inside the cellblock at the time of the slashing, in violation of Department of Corrections policy. Plaintiff sues that officer, Mullings.

The district court denied the officers' motion for summary judgment on Ross's failure to protect claim, but the Court of Appeals taketh away that victory and rules for the officers. While prison officials must take reasonable measures to guarantee inmate safety, not every injury results in a constitutional violation. Mullings is off the hook. The Second Circuit finds there is no evidence that Mullings knew about the safety risk to Ross posed by the gang members who slashed him. Ross gets around this by arguing that Mullings is liable because he walked off his post, resulting in the violence.

Nice try, but not enough, the Second Circuit says. It reasons like this:

We are aware of no controlling precedent adopting such a broad standard. As an initial matter, there are numerous reasons for an officer to leave his or her post in a maximum security facility—some justified, others not. No decision of which we are aware rules that such an officer has committed a constitutional violation irrespective of the circumstances present in a given situation. Such a holding would run counter to the Supreme Court’s [precedent] and our Court’s precedent on this issue. Indeed, in the instant case, such a ruling would force us to ignore important contextual considerations that undermine the argument that Mullings “kn[ew] of and disregard[ed] an excessive risk to [Ross’s] health or safety” and yet still acted with “subjective recklessness.” These considerations include the fact that another corrections officer was still assigned to, and present at, the cellblock at the time of the slashing, and that neither officer had ever witnessed such an attack in their long careers. While Mullings may have exercised poor judgment in temporarily leaving his post, “deliberate indifference describes a state of mind more blameworthy than negligence.”

2d Circuit interpets Lilly Ledbetter Act

Remember the Lilly Ledbetter Act which Congress enacted in 2009 to overturn a Supreme Court ruling that made it harder for women to challenge salary inequities in Court? The statute is new enough that the courts are still interpreting its meaning. In this case, the Court of Appeals holds that the Act does not allow a woman to sue for discrimination that led to a reduced salary.

The case is Davis v. Bombardier Transportation Holdings, decided on July 22. After plaintiff returned from disability leave over an eye condition, management demoted her to a position that paid her 75 cents less per hour than her previous position. Her EEOC charge was filed more than 300 days after she was demoted. To save her claim, she invokes the Ledbetter Act, arguing that each paycheck that reflected the reduced salary triggered a new statute of limitations. The Act makes it unlawful to apply a discriminatory compensation decision to an employee and, the law further says that the statute of limitations starts anew with each paycheck that reflects that decision.

The Court of Appeals writes that "Davis argues that Bombardier’s demotion decision was made with disability‐based discriminatory intent and, as a result, reduced her compensation. Thus, she submits that her claim is timely when measured from her last paycheck and not the date of her demotion. Bombardier responds that the Ledbetter Act does not resurrect otherwise time‐barred demotion claims because the statute is applicable only to discriminatory compensation practices."

The Second Circuit sides with the employer and says "the Ledbetter Act does not encompass a claim of a discriminatory demotion decision that results in lower wages where, as here, the plaintiff has not offered any proof that the compensation itself was set in a discriminatory manner. A plaintiff must plead and prove the elements of a pay discrimination claim to benefit from the Ledbetter Act’s accrual provisions." As the Third Circuit has held, "'the plain language of the [Ledbetter Act] covers compensation decisions and not other discrete employment decisions,' such as hirings, firings, promotions, and demotions."

Among other ways, the Second Circuit (Wesley, Livingston and Carney) explains its ruling like this: the Ledbetter Act recognizes that employees do not always know they are receiving a discriminatory paycheck. Co-workers do not always compare salaries. So each discriminatory paycheck is an act in furtherance of an illegal salary scheme. But in a case like this one, where the plaintiff claims she was demoted for discriminatory reasons, there is no reason to extend the statute of limitations as she knows her rights were violated on the day she is demoted.

When can Title VII plaintiffs file suit without an EEOC charge?

Title VII has a built-in mechanism that delays the lawsuit until everyone brings their arguments to the Equal Employment Opportunity Commission, which has to investigate the claim and try to resolve it if the claim has any merit. After six months, though, the plaintiff can withdraw the claim from the EEOC and file suit in federal court. What happens if the plaintiff does not bring his claims to that federal agency before filing the lawsuit?

The case is Fowlkes v. Ironworkers Local 40, decided on June 19. Fowlkes -- born biologically female but now self-identifying as a man -- worked for a union that denied him work on account of his gender. His pro se lawsuit did not allege that he had filed an action with the EEOC before suing in federal court. The Supreme Court said in 1982 that a timely EEOC filing is not a jurisdictional requirement but instead a requirement that is subject to defendant's waiver, estoppel and equitable tolling. In other words, plaintiffs can sometimes get away with not filing first with the EEOC.

The district court overlooked this case law in dismissing plaintiff's lawsuit for failure to file with the EEOC. "By treating the issue of subject matter jurisdiction as a threshold matter here, the District Court did not consider any potential equitable defenses that Fowlkes might present to excuse his failure to exhaust his administrative remedies." So the Court of Appeals (Leval, Chin and Carney) considers whether plaintiff can get around the failure to file an EEOC action, and remands the case to the district court to address these questions in the first instance.

First, the Court of Appeals notes that "when an agency has previously 'taken a firm stand' against a plaintiff's position, the plaintiff's failure to exhaust administrative remedies may be excused on the ground that exhaustion would be futile." The Second Circuit says, "Though our Circuit has not had occasion to consider this particular equitable defense in the context of EEOC Title VII exhaustion, Fowlkes may have a colorable argument that filing a charge alleging discrimination based on his transgender status would have been futile. When Fowlkes filed his 2011 complaint, the EEOC had developed a consistent body of decisions that did not recognize Title VII claims based on the complainant's transgender status." Since plaintiff's EEOC charge on this ground would  have gotten nowhere, his "failure to exhaust could potentially be excused on the grounds that, in 2011, the EEOC had 'taken a firm stand' against recognizing his Title VII discrimination claims." (The Court of Appeals notes that, after Fowlkes filed this case, the EEOC did recognize that Title VII prohibited transgender discrimination).

Second, failure to exhaust may be excused because plaintiff's "more recent allegations of discrimination may be 'reasonable related' to the discrimination about which he had filed an earlier charge with the EEOC." In plaintiff's federal lawsuit, he alleged that the union denied him work in retaliation for an earlier EEOC charge"Given the contents of Fowlke's amended complaint and the close resemblance that it bore to his earlier EEOC charge, his more recent allegations may be 'reasonably related' to those included in his earlier administrative filing with the EEOC."

Fowlkes also plead a Duty of Fair Representation claim against the union, and that claim is also reinstated. The pro se claim is not well drafted (few are), but the Court of Appeals gives him the benefit of the doubt and finds that plaintiff alleged the union denied him work because of his transgender status and because he had previously sued the union for discrimination.