Plaintiffs win arbitration choice-of-forum dispute

Many employment disputes are not resolved through arbitration, not lawsuits. This is because employees sometimes have to sign an agreement that says they cannot sue their employers in court and that the disputes instead must go to arbitration. The employer usually wins if the parties fight about the applicability of an arbitration clause. Not this case.

The case is Holick v. Cellular Sales of New York, decided on September 22. When plaintiffs first got involved with Cellular Sales, they were independent contractors and signed a "Compensation Agreement" that they could pursue any legal actions against Cellular in court. But in 2012, plaintiffs became employees, signing an "Employment Agreement" with management that said all disputes must be resolved at arbitration. Meanwhile, plaintiffs claimed that Cellular had misclassified them as independent contractors and not as employees prior to 2012. (Sometimes people who are designated by management as contractors are actually employees because management has control over their assignments and job duties). Does that dispute get resolved in court or at arbitration? The answer is court, which is the forum designated for resolving disputes during the time period (pre-2012) when the dispute arose.

This case is is tricky. Explaining that the plain language of the 2012 agreement is ambiguous, the Court says that no "provision of the contract states that the employer‐employee relationship commenced with the execution of the Compensation Agreement or otherwise uses language stating that the employment relationship replaced a prior contractual arrangement." So the Court looks to "parol evidence" (or evidence outside the language of the agreement) to decide the parties' intent in signing these agreements. The plaintiffs win, which means they can litigate the case in court. Judge Wesley writes:

Based on the parties’ conduct prior to executing the Compensation Agreements, the presumption of arbitrability is overcome because we find positive assurance that the arbitration clause’s scope—at least insofar as it concerns the promise to arbitrate matters arising out of, or in relation to Employee’s employment—is temporally limited. We reach this conclusion, in large part, based on the fact that when the Compensation Agreements were signed, the parties’ contractual positions changed in a way that impacted arbitrability. In the Sales Agreements, Defendants‐Appellants agreed with the Sales Companies that Pratt and Burrell were not employees of Cellular Sales.

However, about a year and a half later, Defendants‐Appellants agreed to employ Pratt and Burrell. This evolving business relationship is directly relevant to whether the parties intended to have an employment relationship prior to executing the Compensation Agreement. It would be inconsistent with the parties’ conduct to construe the Compensation Agreement, which referenced “employment,” to apply to a period when the parties themselves did not contemplate such a relationship. Defendants‐Appellants’ change in course is just the type of positive assurance required to show that the parties did not intend for the arbitration clause to cover the current dispute.

This is why lawyers drink

Some of the Federal Rules of Civil Procedure are rigid. So rigid that your life will be worth garbage if you violate them. The Notice of Appeal deadline is one of them. This party learns it the hard way.

The case is Weitzner v. Cynosure, Inc., decided on September 16. You have 30 days from entry of judgment to file the Notice of Appeal. Since this rule is jurisdictional, even filing the Notice a day later is too late. There are a few exceptions, though. If you file a timely motion for reconsideration of the district court's ruling, then the Notice of Appeal deadline is extended until the judge resolves the motion for reconsideration. But that motion must be filed within 28 days after the judgment is entered.

Got that? In this case, plaintiffs alleged that defendant violated the Telephone Consumer Protection Act. Ruling for the defendant, the district court entered judgment on March 5, 2013. On March 15, 2013, plaintiffs served on defendant a motion for reconsideration, but they did not file it with the district court. Plaintiffs failed to file it with the court pursuant to the district court's Individual Practice Rule, which says you file the motion papers after the motion is fully briefed and ready for adjudication. Many district judges utilize that rule, which allows the motion to be docketed in the court's computerized system only when the motion is fully briefed, I suspect because the court's internal deadline to decide the motion does not begin to run until the system is aware that the motion was filed. We call this delayed filing system "bundling." Since motions can take weeks or even months to be fully briefed, bundling means that the motion for reconsideration is not filed with the court within 28 days of entry of the original judgment, even if it was served on the other side right away. That is what happened in this case. The motion for reconsideration was "filed" on August 14, 2013. The district court denied that motion on February 6, 2014. Plaintiff filed a Notice of Appeal from the March 5, 2013 judgment on March 6, 2014.

So what we have is a rigid 30-day Notice of Appeal deadline and a 28-day deadline to file the motion for reconsideration, which tolls the deadline for the Notice of Appeal. We also have the practice of many district court judges who do not want you to file the reconsideration motion until it is fully briefed, more than 28 days after judgment is entered. We all have to follow district court rules, right? Is that a good excuse for the "untimely" filing of a motion for reconsideration, which in turn makes the Notice of Appeal an untimely filing as well? It is not.

The district court may extend the 28-day requirement to file the motion for reconsideration. But plaintiffs do not qualify for that extension because they could have asked the district court for permission to file the motion within 28 days. Failure to do so, the Second Circuit (Leval, Chin and Carney) says, was unreasonable. Since the reconsideration motion was not timely filed (even though it was timely drafted and served on the other side), then the Notice of Appeal is untimely as well. The appeal is dismissed.

The Court of Appeals notes that many district courts require the parties to bundle their motions and that this means motions for reconsideration will be filed more than 28 days from entry of judgment, which will make the appeal untimely. The Court suggests the bundling rule violates the Federal Rules of Civil Procedure, which requires that motions be filed shortly after they are served. The Court concludes by stating,

While it is true that in many cases counsel will have the opportunity, as in this case, to ask the judge’s leave to file without delay, a judge is not always available to deal promptly with an emergency application. Nor is there a guarantee that all judges will reasonably grant an exception from compliance with their rules. Litigants should not be put in the position of risking to be held in contempt for violation of the court’s rules – simply for filing with the court a paper whose filing is not only permitted, but also required, by the federal rules.We have no doubt that the purpose of such individual calendar rules is to assist district courts in dealing with significant administrative burdens. Nonetheless, we are confident that the useful objectives of such rules could be achieved in a manner that would avoid these unacceptable pitfalls. We very strongly recommend that district courts promptly review their individual rules and practices so as to eliminate the unacceptable risk that litigants will forfeit rights because of observance of rules promulgated by individual judges, especially with regard to rules that are of questionable consistency with the governing provisions of the federal rules and statutes.

Huge fabrication-of-evidence verdict is sustained

State investigators accused a dentist of Medicaid fraud in the amount of $1.1 million. They said the dentist collected government money for services he never provided. A state judge acquitted the dentist of all charges, and the dentist then sued the investigators, claiming they fabricated spreadsheet evidence against him before the grand jury. The civil jury ruled in his favor, awarding him $7.7 million in damages, including over $4 million in lost earnings, $2.5 million in pain and suffering and $1 million in punitives, amounts that the district court reduced to $4.7 million. The Court of Appeals affirms it all.

The case is Morse v. Fusto, decided on September 11. When juries enter a verdict, you cannot really appeal on the basis that you had better evidence than the winning party. The jury decides who had the better evidence. So you appeal on legal issues.

Qualified immunity is a legal issue that defendants love to invoke. It says that defendants cannot be liable for violating the law if the case law at the time of the alleged violation was not clear enough. Defendants said the could not held liable because "they had no constitutional duty to include all material information in the spreadsheet summaries" when they presented the case to the grand jury. They also argued that the omissions in the spreadsheets did not constitute the kind of fabrication of evidence that the law prohibits. The Second Circuit disagrees. While grand jury proceedings are one-sided in favor of the prosecutor, the general rule prohibiting the fabrication of evidence through false statements or omissions covers what happened here, as the spreadsheets were misleading and effectively falsified. "The integrity of the judicial process can be unlawfully compromise by a government official's submission of information to a jury that implicates the accused based in part on material omissions."

While there are no cases precisely on point, the existing case law placed defendants on notice that what they did (or failed to do) violated the law. "Qualified immunity is unavailable on a claim for denial of the right to a fair trial where that claim is premised on proof that a defendant knowingly fabricated evidence and where a reasonable jury could so find."

The verdict is sustained. Plaintiff lost his dental practice when he got arrested, and his name was dragged through the mud, which is why he won a huge damages award. Judge Sack cites in a footnote a famous quote from a Reagan administration official who was acquitted after a highly-publicized arrest. The official asked where he could go to get his reputation back. The law may give you money, but it cannot give you back your reputation.

EEOC can sue Sterling Jewelers for nationwide discrimination

In this case, after receiving 19 individual complaints of discrimination against Sterling Jewelers (the largest fine jewelry company in the U.S.), the EEOC conducted an investigation, finding that Sterling had systematically discriminated against women in promotions and salary. The EEOC then sued Sterling in federal court, which dismissed the case on the ground that the EEOC had not proven that it had conducted a pre-suit investigation. The Court of Appeals reverses.

The case is EEOC v. Sterling Jewelers, Inc., decided on September 9. In 2015, the Supreme Court said in the Mach Mining case said that, before the EEOC can bring an enforcement action under Title VII, it must:

(1) receive a formal charge of discrimination against the employer; (2) provide notice of the charge to the employer; (3) investigate the charge; (4) make and give notice of its determination that there was reasonable cause to believe that a violation of Title VII occurred; and (5) make a good faith effort to conciliate the charges.

While courts have authority to review whether the EEOC has fulfilled its pre-suit administrative obligations, the Second Circuit has never determined the proper scope of that review. On authority of Mach Mining, the Court finds that judicial review into this is limited. "[C]ourts maynot review the sufficiency of an investigation -- only whether an investigation occurred." The Court of Appeals (Walker, Lynch and Lohier) says:

In order to prove that it has fulfilled its pre‐suit investigative obligation, the EEOC must show that it took steps to determine whether there was reasonable cause to believe that the allegations in the charge are true. Here, the EEOC’s complaint against Sterling alleged nationwide discrimination; accordingly, the agency must show that it undertook to investigate whether there was a basis for alleging such widespread discrimination. The EEOC need not, however, describe in detail every step it took or the evidence it uncovered. As with the conciliation process, an affidavit from the EEOC, stating that it performed its investigative obligations and outlining the steps taken to investigate the charges, will usually suffice.

That is what we call deferential review. But that's what the Supreme Court authorized in the Mach Mining case. It is not for the federal courts to second-guess EEOC investigations. In this case, the Court of Appeals holds that the district court got it wrong. While purporting to examine the existence of the EEOC's investigation, it actually considered its sufficiency. It could not consider sufficiency. Since the record shows the EEOC did in fact investigate the discrimination complaints, that is enough to allow it to bring this enforcement lawsuit.

Dodd-Frank protects internal whistleblowers

The Court of Appeals holds that the Dodd-Frank whistleblower law protects employees who report securities violations internally. This case exposes an inter-Circuit conflict that will certainly end up in the Supreme Court.

The case is Berman v. Neo@Ogilvy, LLC, decided on September 10. In 2002, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. It says that Wall Street whistleblowers cannot suffer retaliation if they report violations to the Securities and Exchange Commission. But the statute also says extends retaliation protections for people who "make[] disclosures that are required or protected under the Sarbanes-Oxley Act of 2002." We'll call that subdivision (iii)). Under that Act, Wall Street honchos cannot retaliate against employees who report securities violations internally, i.e., to their supervisors. Since Berman only reported violations internally and not to the SEC, if Dodd-Frank only protects whistleblowers who report violations to the SEC, then Berman cannot sue his employer for retaliation. The issue is whether Dodd-Frank also protects internal whistleblowers.

Recognizing the statute has an ambiguity that Congress may not have intended, the Court of Appeals (Sack and Calabresi) defers to the regulations created by the SEC, which says Dodd-Frank covers people who only report violations internally. Under Chevron deference principles, which provide that courts must defer to administrative agency interpretations of ambiguous statutes, the Court of Appeals accepts the SEC's regulation as reasonable. It does so for these reasons:

First, there will be very few employees who simultaneously report securities violations both internally and externally, to the SEC, as some will think that reporting them internally will be enough. Second, some whistleblowers must report their concerns internally before going to the SEC, including auditors and attorneys. "Apart from the rare example of simultaneous (or nearly simultaneous) reporting of wrongdoing to an employer and to the Commission, there would be virtually no situation where an SEC reporting requirement would leave subdivision (iii) with any scope."

Judge Jacobs dissents, siding with the courts that have more narrowly interpreted Dodd-Frank. He notes that whistleblowers in certain circumstances are still protected under Sarbanes-Oxley.

Bergstein & Ullrich prevail in municipal free speech claim

U.S. Judge Upholds Right to Scrawl Nasty Note on Speeding Ticket Payment

By BENJAMIN WEISER 

SEPT. 15, 2015

New York Times

 

It began with a speeding ticket given in upstate New York to a man whose response was, to put it mildly, less than polite. He sent back a payment form with a scribbled five-word expression of vulgarity, and crossed out the town’s name.

Instead of Liberty, the man wrote “Tyranny.”

Local authorities were not amused. They ordered the man, Willian M. Barboza, to return to Town Court, a long drive from his home in Connecticut. Mr. Barboza was summarily lectured by a judge, arrested and held for several hours on charges of aggravated harassment.

In most small-town traffic cases, justice is dispensed quietly, fines are paid and unhappy drivers go on with their lives. This case did not go that way.

Mr. Barboza decided to sue the Village of Liberty, whose police officers had arrested him. Last week, a federal judge, Cathy Seibel, in White Plains, ruled that his First Amendment rights had been violated, and allowed his lawsuit to proceed.

 

“The whole time that I was there, it felt like an episode of ‘The Twilight Zone,’ ” he said in a phone interview on Tuesday. “I just wanted to ask if they had any sense of irony at all.”

Willian M. Barboza was ticketed and later arrested. Credit New York Civil Liberties Union

The Village of Liberty, it turns out, might have a problem with people who utter vulgar things that they should not.

Mr. Barboza’s lawyers argued in court papers that the village has had a practice of unconstitutionally arresting people for offensive speech: on the street, in phone messages and in the presence of police officers.

“People use language like this all the time,” said Stephen Bergstein, a lawyer who represents Mr. Barboza along with the New York Civil Liberties Union. “They send letters like this to customer service at Verizon, the I.R.S.

“When people are unhappy, they vent on forms like that,” Mr. Bergstein added. “You shouldn’t have to get arrested for it.”

Mr. Barboza’s lawyers have also claimed in court papers that the village has failed to educate its officers in “limitations on the arrests of persons engaged in protected speech,” or in how to interpret state laws on aggravated harassment or disorderly conduct, the basis for other cases that the lawsuit calls into question.

“At trial, we’d hope to show that the village is liable for failing to train their officers on basic First Amendment rights,” said Mariko Hirose, a staff lawyer with the civil liberties union. “This kind of false arrest should never have happened.”

Adam L. Rodd, a lawyer for the village, declined to comment on Tuesday, citing a village policy of not discussing pending litigation.

In their papers, Mr. Barboza’s lawyers cite cases in which people were charged under the disorderly conduct law after expressing obscenities and other crude language. One highly intoxicated woman repeatedly yelled an expletive “on a crowded street after being warned several times by a uniformed Liberty police officer not to,” one charging document said.

Photo

The Government Building in Liberty, N.Y. A ticket clerk took Mr. Barboza’s note to a town judge, who sent it to a prosecutor. Credit Bryan Anselm for The New York Times

Another person, using profanity-laced language in a motel parking lot, called an officer a “pig” and continued to use “abusive and obscene language after being ordered” to stop, according to another document.

The lawyers also cited cases filed under the aggravated harassment law, which has since been invalidated as vague and over broad by the New York State Court of Appeals.

Judge Seibel, in her ruling on Thursday, which was issued from the bench, declined to find that the other cases “constitute a pattern of constitutional violations as a matter of law.”

But she added that, while the degree of threatening language in the other cases varied, “a jury could conclude that at least some of them reflect an unconstitutional basis for arrest.” That issue will ultimately be decided by a jury, she noted.

She dismissed the suit’s claims against officers involved in Mr. Barboza’s arrest.

Mr. Barboza was a 21-year-old student in May 2012 when he was stopped for speeding on Route 17.

Lawyers for the village say in a court filing that shortly after Mr. Barboza’s handwritten message on the payment form was received, it was read by a clerk and taken to a town judge, who concluded that the comments were “threatening in nature” and that Mr. Barboza’s actions may have violated the law.

The judge got in touch with Robert L. Zangla, a prosecutor in the Sullivan County district attorney’s office, and asked him to investigate. Mr. Zangla’s office concluded that the conduct was illegal, the filing says.

Lawyers for the village and Mr. Zangla, who was also sued, argued that the officers had probable cause to make the arrest and that the suit’s First Amendment claims were without merit. Mr. Zangla has been found liable in Mr. Barboza’s claim.

Samuel Yasgur, the Sullivan County attorney, whose office represents Mr. Zangla, said he had “a great deal of respect for Judge Seibel,” but added, “I obviously disagree with her decision and I’m studying it to determine whether or not we are going to appeal.”

Fellow has a case after the police threw him out of the courthouse

This guy went with his attorney to the Albany County Courthouse to review a court file. He waited in a public area while his lawyer went inside. An officer came around and kicked plaintiff out of the waiting area. It is not clear why the office did this, but he used excessive force in throwing plaintiff out of the waiting area. Plaintiff sues under the Fourth Amendment alleging an unlawful seizure.

The case is Salmon v. Blesser, decided on September 10. This case may look like an easy one, but the district court dismissed the case for failure to state a claim. In dismissing the case, the district court cited Sheppard v. Beerman, a Second Circuit case from 1996 that held that a former law clerk was not seized under the Fourth Amendment when court officers ordered him to leave his former employer's chambers and escorted him from the courthouse. Since the former clerk could go wherever he wanted except for the judge's chambers, he was not seized. The Court of Appeals now holds that the Albany County Courthouse guy has a case despite Sheppard, which is distinguished.

Sheppard is not on point because the officer physically grabbed Salmon "without encountering reprisal or resistance" and "use[d] painful force to control Salmon's movements. That distinguishes this case from Sheppard, where no physical force was used." The Second Circuit (Jacobs, Raggi nad Lynch) tries to limit this holding, however:

To be clear, we do not here hold that any physical contact will transform an order to depart a public place into a Fourth Amendment seizure. But where such an order is accompanied by the use of sufficient force intentionally to restrain a person and gain control of his movements—as the collar grab and arm twisting allegedly did here—we conclude that a Fourth Amendment seizure is plausibly alleged.

Negative SDHR finding is not the death knell for a discrmination lawsuit

If you want to bring a federal employment discrimination lawsuit, you have to first file a charge of discrimination with the Equal Employment Opportunity Commission or the State Division of Human Rights. If those agencies decide that you have no case, can you still file a lawsuit?

The case is Cortes v. MTA New York City Transit, decided on September 4. The plaintiff brought an action against the Transit Authority in the State Division of Human Rights, which found "no probable cause" following an investigation. When plaintiff then filed the lawsuit in federal court, the Eastern District of New York chucked it, interpreting the Second Circuit's ruling in Collins v. New York City Transit to mean that the SDHR's dismissal of the claim is entitled to "almost preclusive weight." In Plain English, this means the court thought that Collins means that the SDHR's negative findings are strongly suggestive that the plaintiff has no case. The EDNY misinterpreted the Collins ruling, the Court of Appeals holds.

Collins holds that when the plaintiff loses her discrimination claim at binding arbitration with the employer, that loss weighs heavily against the plaintiff's lawsuit. More particularly:

In Collins, ... we held only that while “a negative arbitration decision rendered under a CBA does not preclude a Title VII action by a discharged employee[,] . . . a decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the requisite causal link.” Under such circumstances, when an arbitral decision “follows an evidentiary hearing and is based on substantial evidence, the Title VII plaintiff, to survive a motion for summary judgment, must present strong evidence that the decision was wrong as a matter of fact -- e.g. new evidence not before the tribunal -- or that the impartiality of the proceeding was somehow compromised.”

Few plaintiffs can get around Collins if they lost their case at arbitration. But Collins does not apply here because Cortes did not lose an arbitration but simply got a negative finding from the SDHR. While the SDHR's findings are admissible evidence that the employer can use to show the plaintiff has no case, that is a far cry from Collins preclusion. The case is sent back to the EDNY for further review.

Tea Party flag cannot fly at New Rochelle Armory

Non-lawyers do not realize how complicated the First Amendment is. In this case, the State of New York conveyed to the City of New Rochelle the Armory, which had to remain open for public use. The City then allowed a local veterans' group to display and maintain flags at the Armory. The groups wanted to run a "Don't Tread on Me" flag up the pole, but the City made them take it down. Do the veterans have a case? They do not.

The case is United Veterans Memorial v. City of New Rochelle, a summary order decided on September 9. Flags are pure speech, and the flag in this case, formally known as the Gadsden Flag but known to us these days as the Tea Party flag, promoted a particular political message. Here's a picture of the flag for you to ponder. Can't the veterans fly this flag? Under normal circumstances they can, but in this case, they cannot.

Under the government-speech doctrine, the government can promote a message on its property without having to afford equal time or other speech opportunities to citizens. This doctrine gained attention a few years ago in the Pleasant Grove v. Summum case, where the Supreme Court said the government was not required to post a private organization's religious monument in a public park, which had already contained 15 permanent monuments, including a 10 Commandments monument. Since we're talking government speech in the Summum case, the property was not a public forum, which requires the government to allow people to express themselves freely.

Summum controls the New Rochelle case. The Armory is a government building. As the district court held, and the Second Circuit affirmed, "it is not plausible that a reasonable observer would consider the Gadsden Flag flying at the Armory to be private speech, and it is obvious that the flag would be regarded as government speech. ... The Armory and its flagpole are owned by the City, and flags, like monuments, are reasonably interpreted as conveying a message on the property owner's behalf." The  Court of Appeals holds that "the City was well within its rights to delegate to United Veterans the right to display and maintain flags on the City-owned flagpole without creating a public forum of any sort, or relinquishing control of the flags displayed."

Statistical evidence can win a Title VII case, but ...

The Court of Appeals holds for the first time that statistical evidence can win a Title VII pattern and practice class action, but it had better be good statistical evidence. That evidence was not good enough in this case.

The case is Burgis v. New York City Department of Sanitation, decided on July 31. Plaintiffs claim they were denied promotions because of their race and national origin. They challenge the Department's promotional practices as discriminatory. Since 1979, certain promotions to the General Superintendent position are done on the basis of supervisory recommendations. "Plaintiffs allege that by using recommendations in this way, DSNY has created a supervisory workforce that is not representative of the racial and/or national origin composition of the sanitation worker workforce." Statistics in the complaint show a racial/national origin disparity, i.e., while 56 percent of the Sanitation Workers are white, 23.5 percent are black and 18 percent are Hispanic, 81-91 percent of the General Superintendents are white and 3-13 percent of them are black and Hispanic.

Plaintiffs claim statistics alone can warrant a plausible inference of discrimination under Iqbal pleading standards. Not so fast, the Court of Appeals (Hall, Calabresi and Rakoff [D.J.]) says.

This is an issue of first impression for this Circuit in the context of a putative class action alleging employment discrimination under § 1981 and/or the Equal Protection Clause. We now hold that, as some of our Title VII cases have hinted, in certain circumstances (described below), statistics alone may be sufficient. ... However, to show discriminatory intent in a § 1981 or Equal Protection case based on statistics alone, the statistics must not only be statistically significant in the mathematical sense, but they must also be of a level that makes other plausible non-discriminatory explanations very unlikely. 

After reminding us that statistics alone are not enough to win an individual disparate treatment case, the Court holds that the numbers in this class action are not enough.

Plaintiffs have failed to allege statistics that meet the standards articulated above. Among other shortcomings, the statistics provided by plaintiffs show only the raw percentages of White, Black, and Hispanic individuals at each employment level, without providing any detail as to the number of individuals at each level, the qualifications of individuals in the applicant pool and of those hired for each position, or the number of openings at each level. ... Furthermore, the fact that each of the plaintiffs has been promoted at some point to the position of supervisor undermines their allegations of discrimination in the promotion of sanitation workers to supervisors.

2d Circuit provides more guidance on Title VII pleading standards

The Court of Appeals treats this case like a practice treatise, providing more guidance on the pleading standards governing Title VII discrimination/retaliation claims. The Court reinstates the lawsuit.

The case is Vega v. Hempstead Union Free School District, decided on September 2. Plaintiff is a teacher. In 2008 he was given an increased percentage of Spanish-speaking students who were not fluent in English. When he complained about this, plaintiff was given a mixture of bilingual and English classes but not paid for the extra preparation time. He was assigned a classroom with a University of Puerto Rico banner above the door. When plaintiff tried to enter student grades into the computer in 2011, someone had deactivated his password. Then, in 2011 and 2012, the District tried to transfer plaintiff out of the High School. After plaintiff filed an EEOC charge in 2011, he was assigned students who were excessively absent, which causes poor student performance which in turn reflects badly on the teacher's performance. In November 2011, the District changed plaintiff's curriculum for one of his classes, notifying all teachers of this change except for plaintiff. Then, in March 2012, $738 was improperly deducted from plaintiff's paycheck for sick time; he was never fully repaid for this. In February 2013, plaintiff got his first negative performance review, the result of a different evaluation process than his colleagues.

The case was dismissed under Rule 12. The Court of Appeals reinstates it. Here are the holdings:

1. The statute of limitations under Section 1983 is three years. The Court has long held that you can sue for disparate treatment under that statute. which enforces the Equal Protection Clause. While discrete acts prior to October 2010 are time-barred, plaintiff says he was assigned extra work on a discriminatory/retaliatory basis after October 2010. The Court says these were discrete acts that occurred within the limitations period, and the Complaint "suggest[s] an ongoing practice" and his pro se Complaint says defendants are "still committing these acts against me." These claims are timely.

2. The Court clarifies that plaintiffs can bring retaliation claims under Section 1983. In 1996, the Second Circuit said you could not do so. In 2010, the Court said you could, but it did not discuss the 1996 case. The Court now says the 1996 case, Bernheim v. Litt, employed unpersuasive reasoning and that the better argument is that since retaliation entails treating people differently for unlawful reasons, it violates the Equal Protection Clause. Also, since the Court has held that equal protection claims alleging discrimination parallel Title VII claims, "there is no sound reason to deviate from this principle for a retaliation claim, when retaliatory action is taken because a plaintiff complains of or otherwise opposes discrimination." In addition, in 2005, the Supreme Court said in a Title IX case that  retaliation in itself is discrimination. "This reasoning applies with equal force to the employment context. When a supervisor retaliates against an employee because he complained of discrimination, the retaliation constitutes intentional discrimination against him for purposes of the Equal Protection Clause."

3. Clarifying the pleading standards under Title VII in light of the Supreme Court's Iqbal ruling (2009), citing the recent Littlejohn case, the Court says, "a plaintiff is not required to plead a prima facie case under McDonnell Douglas, at least as the test was originally formulated, to defeat a motion to dismiss. Rather, because 'a temporary ʹpresumptionʹ of discriminatory motivation' is created under the first prong of the McDonnell Douglas analysis, a plaintiff ʺneed only give plausible support to a minimal inference of discriminatory motivation.'ʺ The Court adds:

to defeat a motion to dismiss or a motion for judgment on the pleadings in a Title VII discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision. As we have long recognized, the ʺʹultimate issueʹ in an employment discrimination case is whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an ʹimpermissible reason,ʹ i.e., a discriminatory reason.ʺ A plaintiff can meet that burden through direct evidence of intent to discriminate, or by indirectly showing circumstances giving rise to an inference of discrimination. A plaintiff may prove discrimination indirectly either by meeting the requirements of McDonnell Douglas and showing that the employerʹs stated reason for its employment action was pretext to coverup discrimination, or by otherwise creating a ʺmosaicʺ of intentional discrimination by identifying ʺbits and pieces of evidenceʺ that together give rise to an inference of discrimination. At the pleadings stage, then, a plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.

Note the "mosaic" theory of pleading discrimination. That derives from Gallagher v. Delaney, a Second Circuit case from 1998. The Second Circuit has never previously used that language in any discrimination case since that time. What is a "mosaic" of discrimination? I don't know, but the "mosaic" theory creates an opening for plaintiffs to plead their cases when they do not have overwhelming evidence of discrimination.

Plaintiff has a plausible discrimination claim under these standards because the District assigned him classes with more Spanish-speaking students and therefore gave him a disproportionate workload. This was an adverse action because plaintiff had more work on his plate without additional compensation. The other allegations, by themselves, are not enough to state a claim on their own, "but they help create context for his discrimination claim." We can infer this all happened because of plaintiff's ethnicity because "he was assigned a large percentage of Spanish‐speaking students because he is Hispanic and bilingual, while his similarly‐situated co‐workers were not assigned additional work. Vegaʹs other allegations of discrimination, even if they do not independently constitute adverse employment actions, provide 'relevant background evidence' by shedding light on Defendantʹs motivation and thus bolster his claim that Defendants treated him differently because of his ethnicity."

4. As for the retaliation claims, here are the pleading standards:

For a retaliation claim to survive a motion for judgment on the pleadings or a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated ‐‐ or took an adverse employment action ‐‐ against him, (2) "because" he has opposed any unlawful employment practice.

...

As for causation, a plaintiff must plausibly plead a connection between the act and his engagement in protected activity. A retaliatory purpose can be shown indirectly by timing: protected activity followed closely in time by adverse employment action. Unlike Title VII discrimination claims, however, for an adverse retaliatory action to be ʺbecauseʺ a plaintiff made a charge, the plaintiff must plausibly allege that the retaliation was a ʺbut‐forʺ cause of the employerʹs adverse action. It is not enough that retaliation was a ʺsubstantialʺ or ʺmotivatingʺ factor in the employerʹs decision. See id. ʺʹ[B]ut‐forʹ causation does not[, however,] require proof that retaliation was the only cause of the employerʹs action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.ʺ Further, ʺthe but‐for causation standard does not alter the plaintiffʹs ability to demonstrate causation . . . through temporal proximity.ʺ

Plaintiff meets these standards. "We conclude that Vega has adequately pleaded retaliation claims under Title VII based on his assignment of notoriously absent students, his temporary paycheck reduction, and the Districtʹs failure to notify him of a curriculum change, and under Title VII and § 1983 based on his negative performance review." After plaintiff filed the EEOC charge in August 2011, the District gave him an excessive amount of students with absentee problems, temporarily reduced his salary, changed his curriculum without prior notice and gave him a bad performance review. Not only did these actions closely follow the filing of plaintiff's EEOC charge, each "could well dissuade a reasonable worker from making or supporting a charge of discrimination."

The assignment of a substantially higher number of chronically absent students could very well have adversely impacted Vega, both by making his teaching assignments more difficult and by making it more difficult for him to achieve good results. Likewise, the wrongful deduction of $738.92 from his paycheck for sick leave, the failure of the District to correct the error in full, and the failure of the District to correct the error even in part for six months surely could have had an adverse impact on Vega. Similarly, failing to notify Vega of a curriculum change could have adversely affected him by, for example, making him appear unprepared or ineffective both to his students and for his up‐coming teacher evaluation, as he would have been preparing for and teaching the wrong curriculum. Viewed in the context of his other allegations, it was plausible that the Districtʹs failure to notify Vega of the curriculum change was part of their pattern of discrimination and retaliation designed to make Vega look bad. Finally, of course, a poor performance evaluation could very well deter a reasonable worker from complaining.

Prisoner has claim for exposure to unsanitary conditions in jail

This case represents sort of a treatise on the rights of inmates. It also reminds is about the good, the bad and the ugly inside New York jails.

The case is Willey v. Kirkpatrick, decided on August 28. Willey is incarcerated at Wende Correctional Facility. He says he was punished by correction officers after he refused to provide false testimony about another inmate. The officers exposed plaintiff to unsanitary conditions of confinement. As the Court of Appeals puts it, "the most grotesque exposure Willey alleges is that officers placed him in solitary confinement with a Plexiglas shield restricting the airflow to his small cell and then incapacitated the toilet, so that he was reduced to breathing a miasma of his own accumulating waste." He was also detained in an observation cell whose walls and mattresses were smeared with feces and stained with urine. The officers also filed false misbehavior reports against him in retaliation for his refusal to rat out another inmate. The Second Circuit (Katzmann, Pooler and Carney) reinstates plaintiff's claims, as follows:

1. In excluding plaintiff from an in-house disciplinary hearing, the officers violated the Due Process Clause because he was unable to defend himself and call witnesses on his behalf.

2. The Court does not determine whether plaintiff's refusal to falsely implicate a fellow inmate was constititionally-protected speech under the First Amendment. The parties did not adequately brief this issue on appeal. The district court must take up this issue. The Circuit notes that Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), a case I argued, might be relevant. In that case, the Court of Appeals said a police officer had the right under the First Amendment to refuse to file a false report at his superiors' direction.

3. The nasty conditions of confinement violate the Eighth Amendment. While prisons are not required to be comfortable, they "must provide humane conditions of confinement." Reviewing cases from around the country on this issue, the Court says that exposing plaintiff to human waste for at least seven days violates the Constitution. 

4. As for the other claims, plaintiff -- who says the bread was stale and the cabbage usually rotten --states a claim that his inedible food constituted a constitutional violation.The district court must also consider whether the officers' theft of plaintiff's legal documents in retaliation for his refusal to falsely implicate another inmate violated the constitutional right of access to the courts.