How to find pretext in retaliation cases: Chen v. City College Part I

Question: if judges on the Court of Appeals disagree on whether the jury can interpret the evidence to support a retaliation claim under Title VII, does it mean that the case is necessarily for the jury? That's a good question for a law review article. But in the real world, the jury does not hear the case if the plaintiff loses the appeal by a 2-1 vote. Which is what happened in this case.

The case is Chen v. City University of New York, decided on October 28. Plaintiff taught at City College in the Asian Studies Program. She had good reviews and scholarly credentials, but did not yet have tenure. Things went sour when a strange middle-aged male student took one of her classes and made persistent demands on her time and attention. Later on, the student planned to register for another of plaintiff's classes. This led plaintiff to meet with a CCNY administrator, Lesen, who advised plaintiff on how to deal with the student (who is nameless in the opinion and is referred to as "the Student"). Following this meeting, Lesen emailed plaintiff asking her to "let me know how things go with that student" and assuring her that "if the situation does not improve after you have created some boundaries" she will be able to help. Plaintiff met with the student right away (before he actually enrolled in the class) and asked him to sign off on a list of appropriate student behaviors, i.e., respecting plaintiff's office hours and maintaining "harmony with classmates and respect for the instructor." The student objected and complained to Lesen about this. Lesen then met with plaintiff about the student meeting. Plaintiff testified that Lesen treated her like a child and engaged in ethnically insulting behavior during the meeting. In contrast, Lesen testified that plaintiff would not listen to her and that the meeting was "one of the most frustrating meetings I have ever had with a professor." Plaintiff then met with Lesen and the department chair, Calichman, who wrote plaintiff a memo that criticized how she dealt with the student.

Next thing plaintiff knows, Calichman recommends that CCNY deny her reappointment to another term as Interim Director of the Asian Studies Program. Plaintiff then filed an internal discrimination complaint against Lesen and Calichman, claiming they denied her equal treatment in employment arising from the student incident. Afterwards, Calichman, who sat on an executive committee that determined which professors to reappoint, voted with the rest of the committee to deny plaintiff reappointment. This ended plaintiff's career with City College.

The Court of Appeals (Livingston and Winter) agrees with the district court that no jury can find that defendants retaliated against plaintiff. While she engaged in protected activity in filing her internal discrimination complaint and she was denied these positions shortly thereafter, she cannot show the College's articulated reason for not reappointing her as Interim Director or as a professor -- "overaggressiveness and a lack of tact" with colleagues and with the student -- was pretext for retaliation. "Significantly, it is undisputed that members of the Department of Foreign Languages and Literatures took issue with Chen's collegiality long before she filed her Affirmative Action complaint." Not only did decisionmakers "develop these opinions about Chen's conduct before she filed her Affirmative Action Complaint, they also maintained a consistent perspective afterwards," as evidenced by their continued belief that she had acted inappropriately with the student. While plaintiff had positive evaluations, that does not show pretext. The College's bylaws require that reappointment decisions consider whether the candidate has "satisfactory qualities of personalities and character and a willingness to cooperate with others for the good of the institution."

Interesting holding in that management was able to exploit prior concerns about plaintiff's performance to show that its reason for ending her employment was legitimate and not retaliatory. Employers often seek out this tactic in defending against discrimination claims. "If we had problems with plaintiff before she engaged in protected activity, then that activity could not been the reason she fired the plaintiff." The law is a little more nuanced than that, but the College succeeds in that argument here.

The majority also finds that plaintiff does not have a discrimination case. Her claims "revolve around the argument that she followed Lesen's instructions about setting boundaries with the Student," so defendants "must have had discriminatory motives for reacting as they did." But the Court finds this is "nothing more than a difference of opinion about [plaintiff's] actions." The Court says the jury cannot find defendants were insincere in their beliefs that plaintiff had engaged in poor judgment.

The Court split 2-1 on the retaliation claim. All three judges (including Judge Chin) agree plaintiff has no discrimination claim. I will address Judge Chin's lengthy and interesting dissent in a follow-up post. This dissent, written by one of the few federal judges in New York who represented plaintiffs in Title VII cases, runs through the many ways a plaintiff can show pretext in a discrimination case, suggesting that the College offered shifting explanations for plaintiff's termination and that it overreacted to the episode with the student.  

Discretionary bonus denial can equal adverse action

If employers in New York and most other states are able to treat people badly for any reason or no reason at all, does that mean an employer's discretionary judgment about employee bonuses cannot be challenged under the employment discrimination laws?

The case is Davis v. New York City Department of Education, decided on October 19. Plaintiff was a teacher in New York City. The City gave her school money to distribute to its teachers as part of a discretionary bonus program, rewarding the school for its academic achievements. Plaintiff sued for discrimination after she claimed she did not receive the same bonus as everyone else. The district court dismissed her case, reasoning that the bonus reduction was not an adverse employment action under the Americans with Disabilities Act because the school had discretion to decide on bonus amounts. The Court of Appeals (Leval, Straub and Droney) says this reasoning is incorrect.

"Adverse employment action" is a clunky phrase. I wish the courts had a better way of describing when an employer's ill-treatment of the plaintiff is worth suing over. But here we are. The Second Circuit says that it does not matter that the school had discretionary authority to decide on bonuses. The fact that this decisionmaking is otherwise nonreviewable under the "at-will" employment rule (another clunky legal phrase that really means management can do what it wants without fear of any lawsuit unless it violates a specific statute) does not mean that plaintiffs cannot sue under the employment discrimination laws if the employer exercises its discretion in a discriminatory manner. Otherwise, half or even most of the decisions that employers make on an everyday basis would not qualify as an adverse employment action. As the Court of Appeals puts it:

We do not agree that an employer’s discretion to withhold or reduce a bonus entitles the employer to allocate the bonus on the basis of prohibited discrimination. It seems unlikely, to say the least, that employers covered by the discrimination statutes could freely decide to award substantial discretionary bonuses to all employees except those of a disfavored race, religion, national origin or disability. As most employees work “at will,” most aspects of their conditions of employment are within the employer’s discretion. Deciding which applicant to hire, which employee-at-will to promote, which one should receive additional responsibilities or which one should be fired—all these, being the traditional fare of discrimination suits—are within the employer’s discretion. Rarely does the employee who sues for illegal employment discrimination have a legal right to the benefit she claims (apart from the law of unlawful discrimination). (Indeed, if such an entitlement were required, the discrimination statutes would be unneeded and superfluous, as the plaintiff would have a valid claim based on  contract or some other statute.)

This rule may make sense, but the Second Circuit notes that the Seventh Circuit has gone the other way on this issue, in Hunt v. City of Markham, 219 F.3d 649 (2d Cir. 2000). So it looks like we have a Circuit split that may one day be decided by the Supreme Court.

Davis wins on the issue of adverse employment actions, which helps all plaintiffs, but she loses the war. The Court of Appeals sustains the grant of summary judgment because she cannot show she was denied the full bonus on account of her disability. The Second Circuit notes that she is not able to second-guess the employer's justification for the reduced bonus, i.e., she missed a lot of work and the school decided to share her bonus with the substitute teacher who filled in for her and contributed to the academic achievements that merited the bonuses from the City in the first instance. 

If you've got it plead it

A badly written complaint can come back and bite you in the tuchus. This police misconduct case did not plead an excessive force claim, only a false arrest claim. The Court of Appeals says the plaintiff has no claim for false arrest, but he does have a claim for excessive force. Huh?

The case is Shamir v. City of New York, decided on October 22. Plaintiff went to an Occupy Wall Street demonstration in 2012 when he partook in civil disobedience by sleeping on the sidewalk in a sleeping bag. The police told him to disperse, and he did so. Shortly afterwards, having put his sleeping bag on a bench a few feet away, the police began to crowd around the people who stayed on the ground. Plaintiff called one of the police officers a "thug." An officer then placed plaintiff in too-tight handcuffs, which hurt like the devil and resulted in a hospital visit that left him with a splint on his hand. The lawsuit plead claims for false arrest and "freedom from unreasonable searches and seizures of his person, under the Fourth and Fourteenth Amendments."

Plaintiff did not explicitly set forth a claim for excessive force, and the Court of Appeals (Newman, Walker and Jacobs) is not happy about, repeatedly chastising plaintiff's lawyer over this omission. But it says the complaint could be read to assert an excessive force claim, as the "search and seizure" language suggests that is what the lawyer intended, and that language has some connection to Supreme Court language on excessive force claims. Or course, things could have been much clearer. The Court "reluctantly infer[s]" such a claim.

And such a claim for too-tight handcuffs does exist under the Fourth Amendment. The Second Circuit cites rulings from other circuits in stating that "several decisions have recognized that excessively tight handcuffing that causes injury can constitute excessive force in violation of the Fourth Amendment." The excessive force claims survives.

But there is no false arrest claim. Plaintiff was arrested for ignoring an order to disperse. As plaintiff "'went up to one of the police officers' and called him a thug," that is "the antithesis of complying with an order to disperse. Even if, as Shamir suspects, the motivation for the arrest was his remark to the officer, the violation of the order to disperse provided probable cause to arrest."

Here is how arguable probable cause works

You can say this without actually harboring a bias against police officers: the courts do give the police the benefit of the doubt in civil rights cases. We call it qualified immunity and arguable probable case.

The case is Arrington v. City of New York, a summary order decided on October 15. Qualified immunity means the police cannot be sued for damages if the case law was not clearly established at the time of the incident, or if the police actions were objectively reasonable under the circumstances. Bearing in mind that probable cause is a defense to any false arrest case, this means the police can avoid the lawsuit if they had arguable probable cause, which exists when "either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met."

Plaintiff sues for false arrest after he was arrested for shooting someone. He says it was in self-defense, just like the Bob Marley song. Since he admitted to the shooting, that admission would normally constitute probable cause in the absence of his self-defense claim. But "the extent to which a police officer must credit a self-defense claim is not clearly established, and depends on the facts and circumstances of each arrest. While the police cannot disregard plainly exculpatory evidence when establishing probable cause, if he as a reasonable basis for believing there is probable cause, he is not required to consider plausible defenses offered by a suspect prior to making an arrest."

So, while plaintiff's self-defense claim was plausible, "on the facts alleged in the complaint, including the absence of witnesses to corroborate the self-defense claim," the Court of Appeals (Sack, Chin and Droney) says "officers of reasonable competence could disagree on whether the probable cause test was met." In other words, plaintiff may be right that he had a self-defense claim to the shooting. But since a reasonable officer could disagree on this, plaintiff has no case.

SAFE Act does not violate the Second Amendment

After the gun slaughter in Newtown, the State of New York and the Commonwealth of Connecticut enacted gun-control legislation, including the SAFE Act, which among other things prohibits possession of semi-automatic assault weapons and large-capacity magazines. The Court of Appeals holds that these restrictions do not violate the Second Amendment.

The case is New York State Rifle & Pistol Association v. Cuomo, decided on October 19. The Second Amendment was a dormant constitutional provision until the Supreme Court in 2008 decided the Heller case, which said the Second Amendment confers an individual right to own guns. But the Court in Heller did not say you have an unrestricted right. The Second Circuit now applies Heller and fleshes out what the Second Amendment really means.

The two-part test governing Second Amendment claims is as follows. The Amendment only protects weapons that are in common use and are typically possessed by law-abiding citizens for lawful purposes. The Court of Appeals says large-capacity magazines are in common use, as 25 million of them were available in 1995 (when Congress outlawed them) and nearly 50 million of them were approved for import by 2000. In addition, there are millions of assault weapons in circulation in the United States, including many that are just lying around the house. As for whether these weapons are typically possessed by law-abiding citizens for lawful reasons, the Court cannot decide that difficult issue. But it does not have to, because even if they are, the Court finds, New York and Connecticut are still able to prohibit them.

The next analytical test the Court must work through is what is the appropriate level of constitutional scrutiny in reviewing the legality of these laws. The Second Circuit (Cabranes, Lohier and Droney) goes with heightened scrutiny, which means the laws will satisfy constitutional requirements if they do not substantially burden the ability of law-abiding citizens to use guns for legal purposes. For you non-lawyers out there, the Constitution of course does not have language like this, but courts create these tests and legal standards to help apply otherwise vague constitutional provisions. Under this test, these gun restrictions are legal.

First, deferring to the states' legislative policy judgements about public safety, the Court says semiautomatic assault weapons are designed to kill many people at once, and are mostly used in committing crimes and often kill police officers.The prohibition is also intended to prevent mass-shootings like the one that took place in Newtown and happen regularly in the U.S. So this prohibition is legal. And for these reason, the ban on large-capacity magazines is also legal. The states are able to find as a matter of public policy that these restrictions are necessary to prevent mass shootings.

The Court does, however, rule that the prohibition against  seven-round load limits violates the Second Amendment. New York has nor produced enough evidence that the seven-round load limit is necessary to protect public safety.

When can you sue the states under the Americans with Disabilities Act?

There is nothing more exciting than detailed Eleventh Amendment analysis by any federal appeals court. I take that back. The Eleventh Amendment would probably put most people to sleep. Except that this Amendment serves as a barrier to the courthouse for certain plaintiffs. So it is important.

The case is Dean v. University of Buffalo School of Medicine, decided on October 6. The Eleventh Amendment says you cannot sue the state in federal court. There are exceptions to this rule, usually when Congress says in passing a law that it can be enforced against the states, or when the state consents to be sued. The law is all over the place on this. Over the years, the Supreme Court has said you cannot sue the state for age discrimination in federal court. But you can sue the state in federal court under the Family and Medical Leave Act.

In this case, plaintiff sues a state medical school under the Americans with Disabilities Act over its failure to accommodate his disability in taking a medical examination. The Court of Appeals (Pooler, Walker and Sack) says the plaintiff has a potential discrimination case, but it pauses to discuss Eleventh Amendment immunity. The Court notes that the federal courts have disagreed on whether Congress validly abrogated state sovereign immunity under the ADA. While the Second Circuit held in Garcia v. SUNY Health Sciences Center, 280 F.3d 98 (2d Cir 2001), that Title II monetary claims under the ADA may proceed in federal court if the plaintiff can prove discriminatory animus or ill will that would violate the Equal Protection Clause, "subsequent Supreme Court precedent concerning the constitutionality of Congress's abrogation of Eleventh Amendment immunity under Title II calls Garcia's validity in question. In other words, under more recent Supreme Court precedent, Garcia may no longer be good law.

The intervening Supreme Court precedent on sovereign immunity and the ADA is United States v. Georgia, 546 U.S. 151 (2006), which "explicitly left open the question of whether Congress may validly abrogate sovereign immunity with respect to a particular class of misconduct that violates Title II but does not violate the Fourteenth Amendment." While some district courts in the Second Circuit still apply Garcia, others follow the approach in the Georgia case. The Second Circuit does not decide this issue and instead leaves it for the district court to worry about it on remand.

Hearsay 101

This discrimination case provides a mini-tutorial on hearsay. Plaintiff sues Walmart for race and age discrimination, but the case was dismissed because he lacked evidence of discrimination. The Court of Appeals affirms, and the case is gone.

The case is Hayden v. Walmart Stores, Inc., a summary order decided on October 15. Plaintiff says that a decisionmaker, Pagini, said that plaintiff was too slow and/or forgetful. This evidence would support the age discrimination case. The problem is how to prove that Pagini said this. Hayden testified in deposition that a former co-worker, Byrd, told him that Pagini made this statement. The official definition of hearsay is "an out of court statement offered for the truth of the matter asserted." The plain English definition is "someone told me something and therefore it's true." Since you cannot cross-examine a second-hand statement, most hearsay is inadmissible at trial. Since plaintiff did not provide an affidavit or sworn testimony from Byrd that quoted the ageist statement from a decisionmaker, he cannot use it in support of his case.

Who knows why plaintiff did not include a sworn statement from Byrd in opposition to the motion for summary judgment. Maybe Byrd was nowhere to be found. Maybe Byrd did not want to get involved. Maybe Byrd would not sign the affidavit because it did not accurately describe what she had actually said. Whatever the reason, Byrd's statement to plaintiff about what Pagini said cannot be used at trial. Which is why the age discrimination case is dismissed.

The racial discrimination case is also dismissed because plaintiff offered evidence that a white co-worker did something wrong but only got a verbal warning and was not fired like plaintiff. This argument has an evidentiary deficiency also. Not only did plaintiff try to prove it through hearsay (someone else told him about it), but plaintiff did not provide enough information about this white colleague to suggest that he was a comparable co-worker for purposes of proving disparate treatment.

Fair Housing verdict is sustained after City waives objection to inconsistent verdict

When developers in Saratoga Springs wanted to build rental units in the City, they envisioned that 20 percent of the units would be designated "workplace affordable," rented out to low to moderate income households. The City then rezoned the property to prohibit high-density housing developments. The developers sued under the Fair Housing Act, arguing that the new zoning rules had a disparate impact on racial minorities and families with children. The long and winding road in this case results in a plaintiff's victory.

The case is The Anderson Group v. City of Saratoga Springs, decided on October 19. When the case went to trial in 2010, the jury ruled that the City had violated the civil rights laws, awarding the plaintiffs $1 million in damages. But the jury also said the City had not "engaged in a perpetuation of segregation against African Americans." No one objected to the verdict form leading to this result, which the City said post-trial was inconsistent. The trial court agreed with that argument and ordered a new trial, which resulted in a verdict favoring the City on all claims. The plaintiffs appeal, arguing that the trial court should not have ordered a second trial.

The Court of Appeals rules that the trial court should not have ruled that the initial verdict was inconsistent because the City had waived that objection in the first instance. It was supposed to alert the trial court to the inconsistent verdict before the jury was discharged. The reason we make these timely objections is to allow the trial court to properly guide the jury to a just verdict. One the jury goes home to watch TV, that option is lost forever. For civil procedure mavens who care about issues like waiver and inconsistent verdicts, this ruling is a a good read. This all means the second trial never should have happened, and the initial verdict in favor of the plaintiff developers on the disparate impact claim is revived.

Now that the developers got their verdict back, they ask the Second Circuit to reinstate the $1 million verdict that the trial court took away as too high. The Court of Appeals finds that amount was too high and the plaintiffs are entitled to no more than $100,000. That amount covers the developer's lost costs and harm to its reputation.

The issue of waiver is always serious. The Court of Appeals does not like to take up issues that could have been raised in the district court. On rare occasions, the appellate court will resolve waived issues, but as this case shows us, you cannot count on it. The consequences of waiver cannot be overstated. If the City had a good argument that the initial verdict really was inconsistent, and if a timely objection to that verdict could have ended the case for good once the retrial resulted in a verdict for the City, than that waiver could cost the City hundreds of thousands of dollars in attorneys' fees to the developer's attorneys and God knows any other costs and hassles that came with the second trial and appeal.

Plaintiff wins ADA academic disability appeal

This disability discrimination case involves a medical student who suffered from depression and needed more time prior to his examinations to accommodate that disability. Reinstating the lawsuit against the medical school, the Court of Appeals says the record does not show the school granted him an accommodation under the ADA.

The case is Dean v. University of Buffalo School of Medicine, decided on October 6. The school required students to pass certain tests, including the Step 1 examination, in order to proceed to the next academic level. You get three chances in one year to pass the Step 1 examination. After Dean twice failed the test, he suffered increased symptoms of depression, which made it difficult to prepare for the test. As he was undergoing treatment, plaintiff requested an extended leave of absence, which would have put off his third testing attempt. The school granted plaintiff several extended leaves so he could complete his treatment. As the examination grew closer, while progressing in his recovery, plaintiff requested an additional brief recovery period that would further put off the examination. That request was denied, and plaintiff was dismissed from the program altogether. The lawsuit claims the school denied plaintiff a reasonable accommodation in denying him the additional leave time.

The Court of Appeals (Pooler, Winter and Sack) says plaintiff can prevail at trial. Here is how the parties frame the issues:

On appeal, Dean contends that Defendants failed to provide a reasonable accommodation because he should have been afforded an interval of leave sufficient to allow the prescribed medication to take effect and for Dean to thereafter prepare for a final attempt at the Step 1 exam. Defendants respond that Dean sought medical leave solely for the purpose of undergoing treatment for depression and did not specifically request additional study time prior to the Step 1 retake. Thus, in ultimately supplying Dean a more generous leave period than purportedly requested by Dean and recommended by his physicians, Defendants assert they provided a reasonable accommodation.

Plaintiff sought "a period some five to seven weeks longer than necessary for the medication to become effective," the jury could find that he made this request to prepare for the test. Yet, the school did give him an accommodation: approximately 10 weeks from May through July 2007. Was this enough under the ADA?

The Court notes that "the hallmark of a reasonable accommodation is effectiveness." While the school says it had given plaintiff two extended leaves prior to any reported mental health condition and that extra study time was unnecessary, the Court looks at the reality of test preparation: "We harbor serious doubt that earlier periods of study suffice to prepare a student for a later examination, particularly when the student twice failed that very exam." Moreover, the school had a policy of allowing students six to eight weeks of exam preparation prior to each attempt to pass the test. "While it is unclear how many days or weeks Dean spent effectively studying after beginning pharmacological treatment, by any measure Dean’s period of preparation time in late July 2007 did not span the six to eight weeks allegedly afforded, as a matter of school policy, to medical students who had also failed two prior attempts at the Step 1 exam. Given this policy, a juror could reasonably infer that the abbreviated study period encompassed within Dean’s leave would not have been effective." This evidence gives plaintiff a prima facie case of discrimination. "That students are ordinarily afforded six to eight weeks of study time prior to each attempt at Step 1 ... suggests that Dean’s leave request was a plausible modification of UBMED’s policies."

In light of the prima face case, the school has to show that requested modification would impose undue financial or administrative burdens on the school or fundamentally alter the academic program. The record is devoid of any evidence indicating whether the school evaluated these considerations in determining the reasonableness of plaintiff's requested accommodations. While the courts do not like the second-guess academic judgments, it does not intrude on those judgments in this case where the school has adduced no evidence as to the basis for denying plaintiff's requested modification to the examination schedule.

When is someone sued in her individual or official capacity?

Sloppy pleading will not always result in dismissal of your case, but it could happen. The Court of Appeals may reinstate the case, but that happens a year later. In this case, the district court rejected a claim against a municipal defendant because it was not clear if plaintiff was suing that defendant in her official or personal capacity.

The case is Rodriguez v. City of Rochester, a summary order decided on September 15. For reasons that are too complicated to get into here, when you sue for relief under Section 1983 -- the federal civil rights statute that enforces the Constitution -- you can name individual defendants but must do so in their individual capacity. If you sue them in their official capacity, then that is the equivalent of suing the municipality itself. As it is easier to sue individuals for constitutional violations than municipalities, it is good practice to identify in the lawsuit the capacity in which you are suing the individual.

That did not happen in this case, which alleges that the City maintained an unlawful English-only language policy. The jury ruled in favor of all defendants, including the City, but it found against St. Aubins in finding that she impaired plaintiffs' liberty interests in his choice of language at work. The jury awarded $2,500 in compensatory damages and the same amount in punitive damages.

Plaintiffs named St. Aubin as a defendant, but it was not clear if this defendant was sued in her individual capacity, so the district court dismissed her from the case post-trial, which meant plaintiff lost the case entirely. The Court of Appeals reinstates her as a defendant because, under the totality of the circumstances, it seems clear she was sued as an individual. We know this because plaintiff named St. Aubin and the City as defendants. Plaintiffs also sought punitive damages, which you can only recover from defendants sued in their individual capacities. The Complaint also focuses on St. Aubin's conduct in enforcing the policy. And, at trial, defendants did not object when the district court charged the jury on punitive damages and told the jury that it could find against the City or St. Aubins.

What it all means is that the Court of Appeals found a way to reinstate the verdict against St. Aubins. What we learn from this case is that the Court of Appeals may save you if you did not plead the Complaint properly. But if you do it right the first time around and pay attention to what you are doing, then the case can be resolved more quickly.

Bergstein & Ullrich prevail in First Amendment case

Federal judge rules Southeast sign law unconstitutional

Matt Coyne, mcoyne@lohud.com 3:01 p.m. EDT October 7, 2015

Judge says a town law used to prosecute Carmel resident Carla Marin violates First Amendment

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(Photo: Matt Coyne/The Journal News)

A federal judge has ruled three iterations of a Southeast town law regulating temporary signs — including those for political campaigns — unconstitutional.

U.S. District Judge Kenneth Karas said the laws, which set rules for any temporary, publicly viewable signs, violated residents' First Amendment rights, as they governed the political signs that pop up before elections, but left out other signs that advertise events.

“Political signs are the most important speech we have," said Stephen Bergstein, attorney for Carla Marin, a Carmel resident who brought the suit against the town. “What (Karas is) saying is that, if the statue restricts political speech — and they always do — the town still needs a very good reason to justify that restriction."

Southeast town Supervisor Tony Hay could not be reached for comment.

Marin, an active member of the Republican Party who owns property along Route 312 in Southeast, was prosecuted in Southeast Town Court in 2011, with the town alleging she had failed to take down a political sign more than five days after a primary. The law permitted signs to be up three weeks before an election and five days after.

The charges were dismissed, but Marin alleged the law, enacted in 2004 and revised in 2011, 2013 and 2014, had a chilling effect on her political free speech. She said she declined to put up signs in the run up to other elections, despite being asked.

According to Karas' ruling, Marin, who practices real estate law, declined to put up signs because she found it "humiliating" to defend herself in a court in which she appears.

“What’s really going on is the Town Board, they really just don’t like political signs," Bergstein said. "(To them) there’s too many of them, they think they’re ugly, and they don’t like them being up any more than they have to be. But it’s not their call.”

Legal precedent allows governments to regulate signs to maintain aesthetics, property values and safety, but only in a content-neutral way. Karas found that, while the 2014 version of the law sought to "protect property values, create a more attractive economic and business climate (and) preserve the scenic and natural landscape," Southeast exempted things like real estate signs and holiday decorations.

Southeast did not attempt to argue that either the 2011 or 2013 versions of the law were constitutional. In his finding, Karas wrote they were "for the most part" identical and included content-based restrictions.

Political Sign Ordinance Found to Violate First Amendment

Mark Hamblett, New York Law Journal October 8, 2015
 
A town ordinance that limits political signs on private property to 21 days before an election and five days after violates the First Amendment, a federal judge found.

Southern District Judge Kenneth Karas, ruling in Marin v. Town of Southeast, 14-cv-2094, blocked the Town of Southeast from enforcing a 2014 ordinance that treated political signs as different from other types of signs.

Karas ruled in favor of Carla Marin, a Carmel lawyer and Putnam County Republican Committee member, who was charged in 2011 under an old version of the law for posting a "temporary political sign on her property more than five consecutive days after a political primary."

The complaint against Marin was dismissed in 2013 by Town Justice Gregory Folchetti "in the interests of justice" under New York Criminal Procedure Law §170.40. Folchetti found the violation was of "minimal seriousness" and "there would be little, if any legitimate purpose for imposing sentence" if Marin was convicted.

But Marin said she continued to fear posting signs through two elections because of the ordinance, even as it was amended in 2013 and 2014.

The 2014 version of the law limits "temporary signs" viewable from a public right of way "for a single activity or event." It made no mention of political speech, but it exempts from the limitation "for sale" signs, holiday displays, road signs advertising farm produce and other categories of signs.

Marin sued in the Southern District in 2014 claiming the law was facially unconstitutional. With the town arguing she lacked standing, Marin said she had suffered and was suffering real injury, in part because she practices "in local courts throughout Putnam County," and "it was humiliating to have to publicly [defend] herself in court."

The town contended the 2014 law was content neutral because "it does not contain any reference to political speech at all," and that it merely applies to all temporary signs for a single activity or event.

Karas acknowledged that "in isolation, the section of the 2014 law that explicitly governs temporary signage, §138-75(C), is content neutral."

"However, §138-75-(A) exempts certain signs from these restrictions, and political signs are not among those exempted," he said, rejecting the town's justifications that the exempted signs do not correspond to a "scheduled activity or event."

"This explanation," he continued, "does not square with the 2014 law, as some signs that clearly refer to a temporary scheduled activity, e.g., 'for sale' signs, are subject to less stringent requirements than political signs … and others, like holiday decorations, are completely exempt. Moreover, such distinctions are clearly based on the content of the speech at issue."

Karas said the law, now presumptively impermissible, is subject to strict scrutiny and, under that standard, it is found wanting because it does not further a compelling government interest.

He said the 2014 ordinance was explicitly designed to address aesthetics, public health, safety, and welfare and property values.

While these qualify as "substantial' interests," he said, "Defendant cites no case law, nor is this court aware of any, finding that such interests are compelling such that the 2014 law can survive strict scrutiny."

Even if those interests had been compelling, the judge said, they had an "insufficient relationship" to the language of the 2014 law.

"There is no reason to believe that temporary signs that reference a particular activity or event have a greater effect on aesthetics or traffic safety than construction, for sale, or holiday signs or other signs that are exempted in the 2014 law, some of which are just as temporary as political signs," he said.
Stephen Bergstein of Bergstein & Ullrich in Chester represents Marin.

"Many communities want to place durational and size restrictions on campaign signs, but they don't realize that, in doing so, they are violating the Constitution, especially where other signs can be posted without any limits," Bergstein said Wednesday.

He noted that the ordinance at issue doesn't allow signs until after the primaries are over.

"Town board members don't like the way signs look; they think they're ugly," he said. "They are making a value judgment, and you can't make a value judgment when it comes to political speech."
James Randazzo and Denise Cossu of Gaines, Novick, Ponzini, Cossu & Venditti in White Plains represented Southeast.

Artists can challenge NYC's knife rules

Did you know that gravity knives are illegal in New York? They are. This case alleges that New York City is classifying too many knives as gravity knives, even if they are not actually gravity knives but instead any folding knife that cannot be opened with a quick flick of the wrist. This case does not decide if New York City is misinterpreting state law. It instead decides whether plaintiffs have standing to challenge New York City's interpretation.

The case is Knife Rights, Inc. v. Vance, decided on September 22. That's right. We have the rights of gun owners and also the rights of knife users. The individual plaintiffs are artists who use folding  knives for their work. The City has charged them in the past for carrying these knives. A retail store, Native Leather, sells these knives. The City prosecuted Native Leather for selling them. An advocacy organization, Knife Rights, also sues, claiming the City has gone after its members.

Parties have standing to seek an injunction if they risk being subjected to the questionable rule or law without the injunction. This means that Joe Blow cannot sue New York City in a case like this if he does not own any knives that might get him arrested. As Native Leather has sold these knives in the past, wants to sell them again, and has a real fear of prosecution in light of the City's prior prosecution efforts against it, Native Leather has standing to bring this case. The same analysis applies to the individual plaintiffs, who wish to continue using these knives and were charged in the past with carrying a common folding knife. While the City has not threatened to prosecute them again for this, the City has not "disavowed that they would criminally charge Copeland and Perez again the same circumstances." They have standing to sue.

The Knife Rights organization does not have standing to sue. The Second Circuit does not allow organizations to assert the rights of its members in a Section 1983 suit. The organization can only sue by showing it can independently satisfy Article II standing rules, which requires a personal stake in the litigation. It cannot do so. While Knife Rights says it has incurred expenses in opposing the City's interpretation of the knife law, that was in the past. This does not mean the organization will incur these expenses in the future. Since the organization has not shown it will be prosecuted under the statute, it has not standing to bring this case.

More guidance from the Second Circuit on how to plead a discrimination case

Over the past few months, the Court of Appeals has issued two important decisions on what it takes to plead a pluasible prima facie case of discrimination under the civil rights laws. Here's another one, though it is an unpublished summary order. Still, worth a read if you do this for a living.

The case is Dawson v. New York City Transit Authority, decided on September 16. The Court reminds us the standard articulated in Littlejohn v. City of New York, decided on August 3:

“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 allegations “must give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase of a Title VII litigation.” They need not, however, give “plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination.”

This case was dismissed by the district court under Rule 12, but the Second Circuit (Leval, Lohier and Droney) reinstates it. The district court said plaintiff in this disabilities discrimination case did not plead any adverse action because it said plaintiff was really challenging defendant's refusal to reinstate him, which made this case nothing more than a collateral attack on a prior adverse decision, his termination. But that was not plaintiff's case.

He does not contest the validity of his medically indicated reclassification from train operator to station agent in 2005, a reclassification to which he consented. Rather, Plaintiff challenges Defendant NYCTA’s refusal to consider subsequent developments in his medical condition that could make him newly eligible for classification as a train operator. ... Plaintiff is not in fact disputing the unfairness of his original discharge; nor is it the case that 'only if the original discharge was discriminatory is he entitled to be reinstated.' ... Just as Plaintiff was reclassified in 2005 "because he was not medically able to safely perform the functions of a train operator," Plaintiff now seeks a reclassification because he has allegedly become 'medically able to safely perform the functions' of a train operator.

The district court also tossed the case because it said plaintiff blew the statute of limitations in filing his EEOC charge more than 300 days after he sought the position. The Second Circuit says that analysis is wrong because the adverse decision was made within the 300-day period. By the way, it looks like the Transit Authority admits plaintiff was denied the position because of his history of epilepsy, so he may have a case.

The district court also said the complaint did not allege that plaintiff was ill-treated under circumstances creating an inference of discrimination, another element of the prima facie case. But the Court of Appeals says, "At the pleading stage, district courts would do well to remember this exceedingly low burden that discrimination plaintiffs face even after they have survived a motion to dismiss." Since the City admitted that its refusal to grant Plaintiff's request for reclassification is premised on his disability, he satisfies this standard.