No false arrest claim where victim said plaintiff "looked like" her attacker

This guy sued the police for false arrest after they arrested him for a sexual assault that he did not commit. The case arose when the victim identified plaintiff as the attacker after seeing him walking in her neighborhood; she said plaintiff "looked like" the attacker. Is that identification too uncertain for the police to think twice about arresting him? It is not.

The case is Keith v. City of New York, a summary order decided on March 7. While plaintiff says the victim did not positively identify him as the attacker, in context, her testimony suggests she gave a definitive identification. The police also contemporaneously understood that she gave a definitive identification. "There is no reason to believe that the victim was using the phrase 'looked like' to communicate uncertainty," and the Court "will not permit Keith to manufacture a genuine issue of material fact by 'reading the victim's statement out of context." In addition, there are no cases that suggest that "in order for a witness's identification of a perpetrator to provide probable cause, it must be made with complete certainty." Since the officers are seeking dismissal based on qualified immunity -- which allows them to dismiss the case if they acted reasonably under the circumstances -- a reasonable officer in this situation could have concluded that probable cause existed to arrest plaintiff for the sexual assault.

Plaintiff also sues for malicious prosecution. That claim also fails, as probable cause is a defense to that claim as well. While the probable cause test for malicious prosecution is "slightly higher than the standard for false arrest cases," information from an informed citizen accusing someone of a specific crime is enough to provide the police with probable cause. Here, after plaintiff's arrest, the victim positively identified him once again, this time during a lineup.

Visual body search in prison might violate Constitution

Here is a comprehensive ruling on the rights of a female inmate in state prison who says she was physically abused by correction officers. The Court of Appeals says she may have enough evidence for trial.

The case is Harris v. Fisher, decided on March 15. Harris took the cotton from her mattress and pasted it to the windows in her cell so that no one could see inside. This was against the rules, so the officers entered her cell to remove the cotton. When plaintiff said there was no cotton left, she said they threw her to the ground, lifted her clothing "and forcibly opened her legs to allow the male officer to visually inspect her genitals for any additional cotton." On the summary judgment motion, the officers did not deny doing this.

Harris has a Fourth Amendment limited right to bodily privacy. She wins the case if she has a legitimate expectation of bodily privacy and the prison does not have sufficient justification to intrude on those rights. The analysis here is quite complex. Harris prevails on the summary judgment motion because the search was too intrusive in that (1) it was a visual bodily cavity search (2) conducted by male and not female officers and (3) it is unclear why the search was conducted in such a violent and forceful manner. Also, the Court says, it is hard to see the justification for the search. The officers don't really provide a reason supported by the record. Hypothetical reasons don't count. What is more, nothing suggests that possessing cotton (even in your genitalia) violates prison rules.

Harris also sues under the Eighth Amendment, which prohibits cruel and unusual punishment. On her testimony, she may satisfy the subjective element of this case (that the officers intended to violate her rights) because the officers deny that the search even took place. On the objective element (that the violation was harmful or serious enough to reach constitutional dimensions, plaintiff can win even if there was no actual contact with her genitalia. The visual inspection may be enough to win the case. This was also not a de minimus violation; she was thrown to the ground and they forcibly opened her legs, and she may have suffered a physical injury.

2d Circuit finds Village of Garden City violated Fair Housing Act

A suburban community on Long Island wanted to rezone public property so it could sell the property to developers and close a budget gap. Initially, the village was going to allow for multi-family zoning. Then the community objected, and the village instead rezoned the property for mostly single-family homes. The district court found the village liable under the Fair Housing Act for intentional discrimination, and the Court of Appeals affirms.

The case is MHANY Management v. County of Nassau, decided on March 23. After the Village of Garden City took up the initial zoning change for multi-family housing, residents objected, using what the district court interpreted as racial code-words. People worried that the property would consist of "affordable housing." Others said (1) the housing would not fit within the "flavor and character" of Garden City; (2) the apartments would have too many people living in them; and (3) the development would be an affront to those who had moved there from Queens, where multi-family housing led to overcrowded apartments and overburdened schools. After the community objected to the rezoning, unlike the initial rezoning process which moved at a snail's pace, the village quickly changed its plans, moving to rezone the property so that most of the housing would be single-family. The district court said the rezoning would have a disparate impact on potential minority homeowners.

The Court of Appeals (Pooler, Lohier and Droney) finds the district court was able to find the village liable for intentional discrimination under the Fair Housing Act. This case tells us how much authority the district courts have in reaching factual findings. From the Second Circuit's ruling, I cannot see any overt racial comments from the community in opposition to the multi-family rezoning. But the village's abrupt change of course in cutting the usual procedural corners to mostly exclude multi-family housing in the aftermath of citizen complaints that fell within the realm of racial objections was enough to find that the village capitulated to racial objections. That capitulation violates the civil rights laws, even if the government decisionmakers themselves were not racists. The crux of the Second Circuit's reasoning on the racial fears is below:

In considering the sequence of events leading up to the adoption of R‐T zoning, the district court also focused closely on the nature of the citizen complaints regarding R‐M zoning. Citizens expressed concerns about R‐M zoning changing Garden City’s “character” and “flavor.” In addition, contrary to Garden City’s contentions that any references to affordable housing were isolated, citizens repeatedly and forcefully expressed concern that R‐M zoning would be used to introduce affordable housing and associated undesirable elements into their community. Residents expressed concerns about development that would lead to “sanitation [that] is overrun,” “full families living in one bedroom townhouses, two bedroom co‐ops” and “four people or ten people in an apartment.” Other residents requested that officials “guarantee” that the housing would be “upscale” because of concerns “about a huge amount of apartments that come and depress the market for any co‐op owner in this Village.”

The district court also noted Garden City residents’ concerns about the Balboni Bill and the possibility of creating “affordable housing,” specifically discussing a flyer warning that property values might decrease if apartments were built on the Site and that such apartments might be required to include affordable housing under legislation pending in the State legislature. This flyer came to the attention of at least two trustees, as well as Fish and Schoelle. Concerned about the Balboni Bill, Garden City residents urged the Village officials to “play it safe” and “vote for single family homes.” Viewing this opposition in light of (1) the racial makeup of Garden City, (2) the lack of affordable housing in Garden City, and (3) the likely number of minorities that would have lived in affordable housing at the Social Services Site, ‐ the district court concluded that Garden City officials’ abrupt change of course was a capitulation to citizen fears of affordable housing, which reflected race‐based animus.

The Second Circuit also cites social science research to the effect that "people believe that the majority of public housing residents are people of color, specifically African American." Research also shows that the public comments are "recognized code words about low-income minority housing."

The district court's authority to resolve factual issues about the community's intent and the village's capitulation is quite broad and almost unreviewable on appeal. The village argued that the abrupt change in course in rezoning the property was simply efficient government decisionmaking. It also noted that no one said anything explicitly racial. But the civil rights laws recognize that racism can be subtle. As the Second Circuit notes:

Garden City’s argument appears to boil down to the following – because no one ever said anything overtly race‐based, this was all just business as usual. But the district court was entitled to conclude, based on the Arlington Heights factors, that something was amiss here, and that Garden City’s abrupt shift in zoning in the face of vocal citizen opposition to changing the character of Garden City represented acquiescence to race‐based animus.

  

Evidence rulings in mortgage fraud case

The world needs more Second Circuit decisions on the rules of evidence. Here's one that talks about "habit evidence," admissibility and the "best evidence" rule.

The case is Crawford v. Tribeca lending Corp., decided on March 8. Plaintiff sues over a fraudulent mortgage loan. She met with defendant's representative at Idlewild Airport to give signature samples on a blank sheet of paper. But she never agreed to the loan and that the company used the signature samples to forge mortgage documents. Defendants say this is all untrue and that plaintiff signed actual loan documents. The jury ruled against plaintiff, and the Court of Appeals (Cabranes, Parker and Lynch) affirms. The appeal raises a series of evidentiary issues that do not get much attention in the Second Circuit.

First, the company had a witness testify that he was the one who met with plaintiff at the airport, that she signed actual loan documents and that he had handled more than a thousand similar loan signings in his career, sometimes 10 per week during the 2004-05 mortgage refinancing craze. This was permissible habit evidence under Rule 406, which says, "Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness." We never see habit cases in the Court of Appeals, maybe because the district courts have discretion in ruling on evidentiary issues and nobody bothers to appeal those rulings. As habit under Rule 406 "describes one's regular response to a repeated specific situation," the jury was allowed to hear how Decarolis went about his business.

Second, the trial court allowed the jury to see 34 loan documents. Only three were originals, the rest photocopies. These records were not hearsay but proof that plaintiff entered into the loan agreement. The copies were also authentic under Rule 901, as the company put on witnesses who said the copies were true copies and not fakes. As Rule 901 "does not erect a particularly high hurdle" and is "satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification," the trial court properly allowed the jury to see the copies.

Third, the best evidence rule arises on appeal. Under Rule 1002, you have to use originals to prove the content of a writing. But that rule has exceptions. A copy is OK if "all the originals are lost or destroyed, and not by the proponent acting in bad faith." As the trial court did not abuse its discretion in finding the originals had been lost and there was no bad faith, it was permissible for the jury to see the copies.

2d Circuit outlines the scope of the ADA's "associational discrimination" provision

The Court of Appeals has clarified the law governing associational discrimination claims under the Americans with Disabilities Act. The new test devised by the Court narrows the opportunities for plaintiffs to win under this statute.

The case is Graziadio v. Culinary Institute of America, decided on March 17. I have written about the Family and Medical Leave Act portions of the case at these links. This is a good case for FMLA plaintiffs, and the Second Circuit (Calabresi, Lohier and Lynch) vacates summary judgment for the employer under that statute. But the Court also says plaintiff has no case under the ADA's associational discrimination provision.

Briefly, plaintiff worked at CIA. Her son has diabetes. She was given the runaround when she sought FMLA leave to care for her son, and was eventually fired for abandoning her position. But she also sued under the ADA, which prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.." Borrowing from other Circuits that have already weighed on on this, the Court of Appeals for the first time tells us what this provision means.

to sustain an “associational discrimination” claim under the ADA, a plaintiff must first make out a prima facie case by establishing: 1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.

The third prong of that test comes with an additional set of legal standards:

In evaluating what circumstances serve to raise such an inference, we draw significant guidance from the Seventh Circuit’s decision in Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004), which outlined “[t]hree types of situation[s]” or theories that would give rise to a claim of associational discrimination: 1) “expense,” in which an employee suffers adverse action because of his association with a disabled individual covered by the employer's insurance, which the employer believes (rightly or wrongly) will be costly; 2) “disability by association,” in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and 3) “distraction,” in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person.

The distraction theory of associational discrimination might apply in Graziado's case, because she had to miss work because of her disabled son. But as the Second Circuit sees it, she has no case under the ADA. She has not presented evidence that she was fired because the CIA suspected distraction or that her concern for her son would cause her to work inadequately. Instead, she has presented evidence that she was fired because CIA thought she had taken too much leave from work to care for him. A subtle difference, but a difference.

In a footnote, the Court of Appeals says that employees like plaintiff who suffer termination because of a sick relative are not without a remedy. "In at least some such cases, employees who require accommodation in their work schedule to care for a family member with a disability may be able to take FMLA leave." The Court also notes that, under the ADA's associational discrimination provision, employees are not entitled to a reasonable accommodation; that accommodation is only available when the plaintiff-employee is disabled, not when a loved one is disabled. While it is true that the FMLA might protect employees who are fired because, like plaintiff, they have to miss work to care for a loved one, that statute is more limited in scope than the ADA. Under the FMLA, you are not covered unless you worked at least one year for the employer and logged at least 1,250 hours that year. Also, employers are not covered under FMLA unless they have 50 employees. The ADA does not have these technicalities, and it covers employers with at least 15 employees. 

Jury can find Culinary Institute of America violated FMLA in terminating woman who cared for sick kids

This FMLA case provides some guidance on the interference clause under this statute, which allows employees 120 days of unpaid leave to care for a sick family member. At this link, I wrote about the individual liability portion of the ruling. This time around, I write about the interference portion.

The case is Graziadio v. Culinary Institute of America, decided on March 17. Plaintiff needed leave for two reasons. One son, Vincent, was hospitalized with diabetes, Another son, DJ, broke his leg. After she took leave, plaintiff and management went around and around on when she could return and what paperwork she had to file to maintain that leave. She was eventually fired for abandoning her job. Taking up the issue of what constitutes interference for the first time, the Court of Appeals (Calabresi, Lohier and Lynch) lays out the standard:

to prevail on a claim of interference with her FMLA rights, a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA. Plaintiff has claim for the FMLA leaves for both sons.

As for Vincent, while plaintiff did take initial leave and was allowed to return to work, the jury could find that she tried to take intermittent leave afterwards and that her leave was not approved. It was during this intermittent leave period that CIA was dragging its feet and giving plaintiff a hard time about whether she had submitted the right paperwork under the FMLA. The Second Circuit also finds that plaintiff was entitled to this leave. While CIA questioned whether plaintiff submitted the proper FMLA form, she timely tried to cure any deficiencies by sending a new certification that outlined Vincent's medical schedule. The jury could find this form was enough to meet the certification requirements under the statute. In sum, plaintiff can win her case with respect to the Vincent-related leave.

Plaintiff can also win the case on her DJ-related leave. The jury could find she tried in good faith to comply with CIA's certification requests and that defendant's conduct excused any residual failure in compliance. When CIA asked plaintiff for medical certification as to DJ, that request was vague and did not give her adequate notice that CIA wanted medical certification. The letter also misstated the deadline for plaintiff to comply with the request. She then tried to restate and clarify her request for certification fairly quickly. The process got so convoluted along the way that, really, your eyes may glaze over while reading about it. The Court says:

Under these circumstances, a jury could conclude that Graziadio made sufficient 2 good faith efforts to comply with her employer’s requests and that defendants’ conduct — their imprecision in requesting certification, their failure to answer Graziadio’s questions responsively, and their failure to communicate with Graziadio after deeming her doctor’s note deficient—relieved Graziadio of any unsatisfied obligation to provide a medical certification to support her leave. Freed of this obligation, Graziadio may well have been entitled to leave to care for T.J. and may, therefore, be able to show that defendants interfered with that leave.

This evidence also supports plaintiff's retaliation claim under the FMLA. CIA said plaintiff abandoned her position. But plaintiff can show that excuse is implausible. CIA told her to contact her supervisor to arrange to return to work, but in that same missive, she was told that if she wants to return to work, she must submit proper FMLA medical certifications. "Given that, for the preceding two months, [supervisor] Garrioch had refused to allow Graziadio to return to work until she submitted new paperwork, it would have been reasonable for Graziadio to read this email as taking the same position: i.e., in order to return to work, you must submit appropriate  paperwork and, presumably in or after doing so, you must contact your supervisor." The Second Circuit proceeds to cut through CIA's reasoning in terminating plaintiff, finding its excuses "difficult, to put it mildly, to accept defendants' argument" in one area. Another CIA argument, the Court says, is "hard to believe."

Supervisors may be personally liable under the FMLA

The Court of Appeals has issued its most definitive case under the Family and Medical Leave Act in years, primarily reaching two holdings: individual supervisors may be held liable under the Act, and also outlining the contours of an FMLA interference claim.

The case is Graziadio v. Culinary Institute of America, decided on March 17. In this post, I will talk about the individual liability portion of the case. In a few days, you will read about the other holdings. Plaintiff was a Payroll Administrator for CIA. When, in June 2012, her 17 year old son Vincent was hospitalized with diabetes, plaintiff asked her supervisor, Gardella, for permission to care for him. Later in June, plaintiff's other son, TJ, broke his leg. Plaintiff asked Gardella for permission to miss work, and Gardella ran it by HR Director Garrioch. That is when things got difficult and convoluted. From plaintiff's perspective, she got the run-around and otherwise blown off when she tried to clarify when to return to work, repeatedly asking management for the right FMLA paperwork. CIA told plaintiff it did not have the proper information from her to continue the FMLA leave. Plaintiff also tried without success to schedule a meeting with management about these issues. Plaintiff then hired a lawyer who tried to iron out these issues with CIA, which insisted that plaintiff had not provided the right information for FMLA leave. She was eventually fired for abandoning her position.Of course, plaintiff said she did not abandon her position and that, instead, management had not properly recognized her FMLA leave at the time.

Every lawsuit has a bad guy, even if the statute does not provide for individual liability. Plaintiff sued CIA, and Garrioch under the FMLA. The Second Circuit (Calabresi, Lynch and Lohier) decides for the first time that plaintiff can sue the individual defendant personally, citing cases from around the country and district courts in the Second Circuit. The legal standard the Court devises draws from the FLSA's "economic reality" test, which determines whether the defendant had the power to hire and fire, supervised and controlled employees, determined salaries and maintained employment records.

Under this test, Garrioch was an "employer" under the FMLA because she played a substantial role in plaintiff's termination, even if that decision formally rested with someone else. Garrioch also exercised control over plaintiff's employment, at least with respect to her FMLA leave. Here's the wrap-up on this issue:

on the overarching question of whether Garrioch “controlled plaintiff’s rights under the FMLA,” there seems to be ample evidence to support the conclusion that she did: deposition testimony and email exchanges demonstrate a) that Garrioch reviewed Graziadio’s FMLA paperwork, b) that she determined its adequacy, c) that she controlled Graziadio’s ability to return to work and under what conditions, and d) that she sent Graziadio nearly every communication regarding her leave and employment (including the letter ultimately communicating her termination). Indeed, Garrioch specifically instructed Gardella and Maffia that they were not to communicate with Graziadio and that Garrioch alone would handle Graziadio’s leave dispute and return to work.   

The gadfly has no case

Every village has a gadfly. This gadfly sued his village on Long Island. He claimed the village retaliated against him for speaking out on public matters, in part, by driving a truck into him and arresting him for trespass. But the case is dismissed.

The case is Bartels v. Incorporated Village of Lloyd Harbor, a summary order decided on March 17. Who knows what Bartels spoke out about in the town; the decision does not tell us. But he claims that one day he was on the side of the road taking pictures of a dangerous hanging wire "when a Village dump truck accelerated and veered toward him, causing him to leap over the guardrail" and down an embankment. He also says that on another occasion that two Village police officers retaliated against him for trying to document environmental harm in the Village.

On the truck incident, plaintiff said at deposition that he photographed the truck coming at him. But, the Second Circuit (Hall, Chin and Carney) says, "contrary to that testimony, the first photo clearly reveals the truck veering away from him, rather than toward him." The photographic evidence is conclusive enough that it does not matter what plaintiff said at deposition. Under the Supreme Court's ruling in Scott v. Harris, 550 U.S. 372 (2007), conclusive photos and videos can entitle the defendant to summary judgment even if the plaintiff's testimony would otherwise create a factual dispute for trial.

This is a summary order, so we don't know all the facts, but the first thing that comes to mind here is that if the truck is coming at plaintiff on the side of the road, he would not able to protect himself and take a picture at the same time. He would only be able to take the picture when the truck is veering away from him. I know that people use their cell phones all the time these days and will risk death in order to get a good picture for Instagram, but some people still value life over good photographs. I could be wrong on this. The district court ruling, at 97 F. Supp. 2d 198 (EDNY 2015), does show the full color photographs with the judge's reasoning why the photos kill the claim. The moral of the story is that photographic evidence can entitle the defendant to summary judgment even if the plaintiff's deposition testimony might otherwise entitle him to a trial.

The other claim is that plaintiff was traversing his neighbor's property in a bathrobe and slippers when two Village officers told him he was trespassing. They pursued him, and plaintiff sought refuge in the neighbor's house. On appeal, plaintiff says the officer got out his taser, but in deposition, he saw the officer "screwing around" with something on his belt, maybe a cellphone. No officer touched plaintiff. The Court of Appeals says the gadfly has no case for substantive due process, which requires proof that a government actor did something that shocked the conscience. 

Some more guidance from the 2d Circuit on Rule 68 offers

Under Rule 68, if defendant offers a judgment to the plaintiff for a certain amount, and the plaintiff rejects that offer but goes to trial and wins less money then the Rule 68 offer, then the plaintiff forfeits the attorneys' fees expended after the Rule 68 offer was served. This result is particularly painful for the plaintiff if he is suing under the civil rights laws, which allows him to recover "prevailing party" attorneys fees from the defendant.

Since Rule 68 can be an effective way to settle cases, many judges think defense lawyers do not use them enough. One district court judge in White Plains used to have a notice as you entered the courtroom that urged defendants to serve Rule 68 offers on counsel. This case is one of the few in recent years that looks at how Rule 68 offers should be worded.

The case is Steiner v. Lewmar, Inc., decided on March 7. This is not a civil rights case but an action under the Lanham Act, breach of contract and unfair trade practices. The holding would apply to civil rights cases, though. Defendant served a Rule 68 offer on plaintiff that offered $175,000 provided the case was dismissed, "including all claims that have been made or could have been made concerning the LiteTouch trademark." The offer also covered all claims that could have been made under the parties' Agreement (or contract) that gave one party the exclusive right to make and sell Steiner's products.

Normally, Rule 68 offers say the offer includes the plaintiff's attorneys' fees. This one did not expressly mention fees. So plaintiff moved for attorneys' fees in the amount of $383,000. The district court said the Rule 68 offer included fees, and the Court of Appeals (Katzman, Chin and Castel [D.J.]) agrees, in part. Plaintiff may still get fees if the district court decides to award them on remand.

If Rule 68 offers are ambiguous on the issue of attorneys' fees, then the language is construed against the defendant, and plaintiff can move for fees. With respect to the claims the parties litigated under the Agreement, this offer was not ambiguous because it covered "all claims that have been made or could have been made concerning ... the Agreement." Attorneys' fees would be such a claim. "Any contractual claim for reasonable attorneys' fees brought pursuant to the Agreement necessarily 'concerns' the Agreement." The context supports this holding. The parties intended to include contractual claims for attorneys' fees, as they made reference to them in pre-trial filings.

But the case also involved claims under the Connecticut Unfair Trade Practices Act, which allows for fee-shifting. While Rule 68 offer would cover claims under the Agreement, "the claim for attorneys' fees under CUTPA arguably does not fall within the language of the Offer. The claim for attorneys' fees under CUTPA arguably is not encompassed by the language 'all claims ... concerning the LiteTouch trademark." The Second Circuit reminds us that "courts have held that statutory attorneys' fees claims are not unambiguously encompassed in a Rule 68 offer when the offer refers to substantive claims but does not explicitly refer to attorneys' fees." The Court of Appeals cites case from other circuits for this proposition. It is now the standard in the Second Circuit.

The case is remanded to the district court to take up the fee petition once again.

2d Circuit says FLSA plaintiffs may be AT&T employees

These plaintiffs brought a wage and hour claim against AT&T Mobility and other defendants. AT&T argued that it was not plaintiffs' employer. Plaintiffs said AT&T was a joint employer with other entities. The district court said AT&T was not a joint employer. The Court of Appeals says the jury may find otherwise.

The case is Grenawalt v. AT&T Mobility, LLC, a summary order issued on March 14. Sometimes plaintiffs want to name more than one entity as the defendant to ensure that someone is able to pay out the judgment. In this FLSA case, plaintiffs provided security for AT&T. They were directly employed by someone else who provided guards to AT&T.

This is a complicated area of law. The Second Circuit (Cabranes, Livingston and Lynch) identifies three separate tests for determining whether an entity is a joint employer. "The first test, derived from Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir. 1984), looks to whether a putative employer exercises 'formal control' over a worker." But this test does not always work in these cases. "Because Carter defines employment more narrowly than FLSA requires, satisfying this test is sufficient, but not necessary, to show joint employment." The second test, set out in Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1988), focuses on whether “the workers depend upon someone else’s business . . . or are in business for themselves.” This test does not always apply because it is  'typically more relevant for distinguishing between independent contractors and employees' than for determining by whom workers who are assumed to be employees are employed." So we look to the third test, first developed in Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2013).

Zheng "weighed six factors in determining whether a garment manufacturer exercised 'functional control' over subcontracted workers, and was therefore their employer under FLSA:

(1) whether [the manufacturer’s] premises and equipment were used for the [putative employees’] work;

(2) whether the Contractor[s] . . . had a business that could or did shift as a unit from one putative joint employer to another;

(3) the extent to which [the putative employees] performed a discrete line-job that was integral to [the manufacturer’s] process of production;

(4) whether responsibility under the contracts could pass from one subcontractor to another without material changes;

(5) the degree to which the [manufacturer] or [its] agents supervised [the putative employers’] work; and

(6) whether [the putative employees] worked exclusively or predominantly for the [manufacturer].

These factors are “nonexclusive and overlapping,” and a court “need not decide that every factor weighs against joint employment.” The Second Circuit runs through these factors in finding that plaintiffs could be considered "employees" of AT&T. The analysis in this case is extensive for a summary order, making me wonder why this is a summary order and not a published opinion.

Rikers inmate beating claim gets a retrial

A Rikers Island inmate who claims he was beaten up by the correction officers is getting a new trial because the trial court prevented the jury from viewing evidence that was critical to his case.

The case is Rentas v. City of New York, decided on March 8. Rentas says that officers at Rikers Island beat the hell out of him and fabricated evidence against him, leading to his prosecution and prolonged detention at Rikers. He also sued them for malicous prosecution, but that claim got dismissed pre-trial. The jury instead heard evidence about the excessive use of force and fabricated evidence. At trial, the judge allowed the jury to see some but not all of the officers' reports about the incident; it was those reports that Rentas claimed supported his fabrication-of-evidence claims. Rentas also brought his Intentional Infliction of Emotional Distress claims to trial. The jury liked that claim and awarded him $67,000. While the jury also found in Rentas's favor on the excessive force and fabrication claims, it only gave him nominal damages on those claims.

The Court of Appeals (Parker, Lohier and Carney) issues a slew of rulings. First, on the malicious prosecution claim that got dismissed prior to trial, the Court of Appeals says the trial court got it wrong in finding that plaintiff could not show the charges that the officers filed against him in connection with his altercation with the officers lacked probable cause, an essential element of any malicious prosecution claim. While defendants said probable cause arose from the testimony of other inmates, those statements were merely quoted in an investigation report prepared by one of the defendants, and it is not clear these statements were independent and untainted information which prosecutors could rely in charging plaintiff with assault. In addition, plaintiff testified that the charges against him were false, and other evidence -- like photos which did not show that he suffered the injuries that would have existed had he attacked the officers -- further showed the charges against him lacked probable cause.

The "fair trial" claim arising from the officers' fabricated reports against plaintiff went to trial. Rentas won on this claim, but the jury gave him only nominal damages. The trial court allowed the jury to see some but not all the officers' reports. That was wrong, the appellate court says. While the City argues the reports were cumulative of other testimony, that misses the point. The reports themselves were a central part of Rentas's claim that the officers had falsified the reports. The reports also supported his excessive force claims. Even the jury wanted to see the reports during deliberations, to no avail. Rentas gets a new trial on his federal claims.

Rentas did spend three years in jail awaiting trial on his criminal charges which were dismissed, leading to his malicious prosecution claim. He wants the Court of Appeals to tell the trial court that it must allow the jury to award him compensatory damages for this, not nominal damages, which typically amount to a dollar. The Court of Appeals finds that nominal damages were permissible  because the jury could have found that Rentas's detention was not caused by the fake evidence but "rather by whatever independent, untainted evidence supported probable cause." The jury found that some defendants fabricated evidence but that others did not. "The jury could have also found that the submission of the non-fabricated evidence would have resulted in Rentas's loss of liberty even in the absence of fabricated evidence." Were that the case, the jury could award only a dollar. On retrial, the jury will again be charged that they could give plaintiff compensatory damages or nominal damages.

Finally, the Court of Appeals says the jury was able to award plaintiff money on his state law IIED claim. Even assuming medical evidence is needed for this claim, plaintiff had that evidence in the form of hospital records showing anxiety, loss of sleep and PTSD. For those of you who want the big bucks in police misconduct cases, remember that this guy only got $67,000 for this.

District court compelled to dismiss sexual orientation discrimination claim under Title VII

You may not realize this, but there is a movement afoot to persuade the federal courts that Title VII prohibits discrimination on the basis of sexual orientation. The statute says you can't fire or mistreat people because of their race, color, national origin, religion or sex. The courts have long held that Title VII does not cover sexual orientation. But that may change.

The case is Christiansan v. Omnicom Group, a SDNY ruling dated March 9. Plaintiff raised a series of issues, including sexual orientation discrimination. He claimed co-workers ridiculed him over this, creating a hostile work environment. And, really, the allegations in this regard will further torpedo your declining faith in humanity, if it has not already hit rock-bottom to start with.

Judge Failla notes how deplorable plaintiff's mistreat was at work, but she is powerless to do anything about it under Title VII. This is because the Second Circuit in 2000 ruled that Title VII's prohibition against gender discrimination does not extend to sexual orientation discrimination. This was the prevailing view in 2000, and Congress tried but failed to amend Title VII to close this loophole. But, as the district court notes, the ground is moving on this issue, though as a district court judge she cannot override Second Circuit precedent. Judge Failla does provide a good summary of why the Circuit precedent does not make sense in this area, even if courts have allowed gay plaintiffs to proceed under Title VII if they can shoehorn their claims into the permissible gender stereotyping category..

The judge notes that "In Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), the Second Circuit unequivocally held that “Title VII does not proscribe discrimination because of sexual orientation.” However, she writes, "The broader legal landscape has undergone significant changes since the Second Circuit’s decision in Simonton." In particular, in 2013, the Supreme Court struck down the Defense of Marriage Act, holdin gthat it violated equal protection in “refusing to acknowledge a status the [individual states recognizing same-sex marriage] find[] to be dignified and proper.” Two years later, as we all know, the Court "further advanced protections for individuals in same-sex relationships when it ruled that, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples have the right to marry." The judge adds, "To be sure, neither of these cases impacts the issue of what protections Title VII affords; that said, they reflect a shift in the perception, both of society and of the courts, regarding the protections warranted for same-sex relationships and the men and women who engage in them. It is against this backdrop that in July 2015 the EEOC issued a decision, binding on federal agencies (though not federal courts), finding that claims for sexual orientation discrimination are cognizable under Title VII. See EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015)."
 

A simple example helps to illustrate the futility of treating sexual orientation discrimination as separate from sex-based considerations: If an employer fires her female employee because the employer believes that women should defer to men, but the employee sometimes challenges her male colleagues, such action would present a cognizable claim under Title VII. If the same employer fires her female employee because the employer believes that women should date men, but the employee only dates women, the prevailing construction of Title VII would find no cognizable claim under that statute. The inevitable result of holding that some sexual stereotypes give rise to cognizable Title VII claims, while others — namely, those involving sexual orientation — do not, has been an invitation to the precise bootstrapping that the Simonton Court intended to avoid. See, e.g., Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 SYRACUSE L. REV. 1117, 1134 (2003) (counseling “gay plaintiffs bringing claims under Title VII [to] emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality”)

The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims. Yet the prevailing law in this Circuit — and, indeed, every Circuit to consider the question — is that such a line must be drawn. Simonton is still good law, and, as such, this Court is bound by its dictates.

See where this is going? Courts and commentators, along with the EEOC, are providing a basis to expand Title VII. The Court of Appeals will have to untangle this. It could happen in this case, as all claims got dismissed, making this case ripe for appellate review. It could also happen in a case I am handling in the Second Circuit with Greg Antollino, Esq., to be perfected today. 

Unsuccessful plaintiff won't pay reverse attorneys' fees

In civil rights cases, the winning plaintiff recovers her attorneys' fees from the losing defendant. So if the plaintiff's lawyer spent 100 hours on the case and is entitled to $300 per hour, the defendant pays out $30,000 in addition to whatever damages the jury awarded. This is mostly a one-way street, though. As a general rule, winning defendants get bubkis from the losing plaintiff.

The case is Nicholas v. City of Binghamton, a summary order decided on March 10. This police misconduct went to trial, and Nicholas lost. Here is the rule governing reverse attorneys' fees:

A prevailing defendant should not be awarded fees unless a court finds that the plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” “The fact that a plaintiff may ultimately lose [her] case is not in itself a sufficient justification for the assessment of fees” in favor of a defendant. Courts should not “engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”

In other words, if the plaintiff fought the good fight, she does not get penalized for losing. As the Court of Appeals says in this case, "Ordinarily, a claim should not be deemed “groundless where
the plaintiff has made a sufficient evidentiary showing to forestall summary judgment and has presented sufficient evidence at trial to prevent the entry of judgment against him as a matter of law. As the decisions of this Court demonstrate, it is very rare that victorious defendants in civil rights cases will recover attorneys’ fees.” In other words, bupkis.

The district court calculated defendants' attorneys' fees entitlement as $31,865. But since plaintiff is out of work and has little money, the court reduced her fee liability by two-thirds, to about $10,000.

The district court awarded the City attorneys' fees, but the Court of Appeals (Winter, Hall and Droney) vacates that award. Plaintiff may have lost, but her claims were not frivolous. There is a difference. Here is how the Second Circuit reasons through it:

A large portion of the district court’s fee award was attributable to Appellant’s excessive
force claim, which was not deemed unsuccessful until it was litigated at trial. Although several of the witnesses disputed Appellant’s version of events, the mere fact that the jury ultimately chose to disbelieve Appellant did not render her claim frivolous. Moreover, contrary to Appellees’ arguments as to the medical evidence, Appellant’s trial evidence, including conclusions rendered by her treating doctors, supported her claim that the trauma of the handcuffs could have exacerbated the underlying arthritis in her wrists. Even though Appellant’s excessive force claim was not particularly strong, it was not frivolous, unreasonable, or groundless.

Anti-Jihad sign lawsuit is now moot

A pro-Israel organization that hates Jihad wanted to place a public service advertisement on the MTA buses in New York City. The City said the mobile billboard could not be posted because it would incite violence. A federal court then struck down the regulation that allowed the City to quash the sign. After the City amended its signage rules, the federal court dissolved the injunction as moot. The Court of Appeals agrees with that mootness finding.

The case is American Freedom Defense Initiative v. MTA, decided on March 3. The advertisement portrayed Muslims in a negative light and made reference to killing Jews and Jihad. Like I said, a federal judge said the provision invoked by the MTA in rejecting the sign violated the First Amendment. But that injunction went out the window when the City rewrote the signage rules. The signs can be seen at this link. The plaintiffs want the injunction to continue because, they say, the new rules are similar and also violate the First Amendment in that they prohibit advertisements that are "political in nature." The Court of Appeals (Katzmann, Kearse and Schofield [D.J.[) finds the district court it right. This case is moot.

Cities and other municipalities are given the benefit of the doubt when they change the rules that people challenge in court. If the court finds there is no likelihood that the old rules will return, then the case is moot. If the new rules are too dissimilar from the old rules, then the case is moot. If the case is moot, we all go home and look for another municipality to kick around. Mootness can kill off even the most interesting lawsuits.

The City convinced the Second Circuit that the old rule is gone for good. The current rule -- which prohibits political advertisements -- is too different from the incitement prohibition. If the plaintiffs want to sue the City again, they will have to find a way to challenge the rules that prohibit political signage on MTA buses.

Plaintiff wins appeal on obscure FMLA provision

The Family and Medical Leave Act was passed in 1993, but it remains one of the more recent civil rights laws. It requires employers to give certain employees up to 12 weeks' unpaid leave to deal with family and personal illnesses and medical emergencies. This case looks at an obscure provision in the FMLA.

The case is Oliveria v. Cairo-Durham Central School District, a summary order decided on February 23. Under FMLA, employees who take medical leave of some kind will return to work when the crisis is over. The regulations state that employers have to let employees know how they will return to an equivalent position upon their return to work. In particular, the employer's policies "must clearly explain the employee's restoration rights upon return from leave."

The employer violated that regulation here. Its return to work policy says that employees will return to an equivalent position but they would not continue to accrue service credit during unpaid FMLA leave. "The District therefore had a duty under [the regulation] to inform plaintiff in writing about the policy before she took FMLA leave. Having failed to do so, it violated the notice requirements" under the regulations.

What this violation means for the case is that the jury may find that the employer's failure to properly apprise the plaintiff of the District's policy may "constitute an interference with, restraint, or denial of plaintiff's FMLA rights." This would be significant if plaintiff "would have taken FMLA leave had she been properly notified about the policy regarding restoration of tenure." In other words, the employer's failure to advise plaintiff about the consequences of unpaid FMLA leave could constitute an "interference" under the law. More specifically, this is how the district court characterized plaintiff's interference claim:

Plaintiff asserts that defendants interfered with her FMLA rights by: (1) failing to restore her to an "equivalent position", deducting twenty-three days from her seniority and rendering her status "inferior" to the status she held prior to taking leave, in violation of 29 U.S.C. 2614(3)(B) and 29 C.F.R. § 825.215(a); (2) failing to inform her "in writing or otherwise, that upon her return from FMLA leave, her seniority status would be reduced by the amount of unpaid FMLA-protected leave she took"; (3) "deducting the time that plaintiff was out on unpaid FMLA leave from [her] seniority status" and using it as a negative factor resulting her in her termination; and (4) "discourag[ing] employees from exercising their FMLA rights" by deducting the leave from their seniority status.

This is a summary order, so we don't know all the details, but since the Court of Appeals (Cabranes, Pooler and Chin) is reversing summary judgment, this decisions means the FMLA interference case goes to trial.

The jails are full of innocent people

I am kidding, of course, but if you walk through the hallways of any prison, you might be led to believe that, based on inmate claims that they didn't do it or were railroaded or the witnesses lied under oath. But the courts will entertain claims of "actual innocence." These claims are hard to win, but they are winnable.

The case is Stephenson v. State of Connecticut, a summary order decided on February 24. This guy was convicted in state court of robbery in Macy's. Post-conviction, the principal witness (a security guard named Sinclair) sent the court an unsworn but notarized statement that clarified his trial testimony. At trial, the security guard said defendant pushed and shoved him when he confronted the defendant. That would be enough for a conviction of robbery third degree. But post-trial, the guard said in this unsworn statement that he did not really mean to testify that defendant had pushed and shoved him. Instead, this witness said, he learned from the newspaper that defendant was convicted based on the "pushing and shoving" testimony but that, in fact, "I made a slip of the tongue when I said that there was 'a little pushing and shoving.' My intention was to convey the fact that there was no fighting whatever and that it was a minor incident." He added, "I thought the jury would understand that there was only arguing involved and no force whatsoever."

Since that testimony about "pushing and shoving" was central to defendant's conviction, this letter was a big deal, even if it was not provided under oath. You can win a habeas corpus petition on "actual innocence" grounds only with compelling evidence, the Supreme Court has said. The case is sent back to the federal district court to make factual findings about whether defendant has established a credible and compelling claim of actual innocence. Specifically, the Second Circuit (Leval, Livingston and Carney) says:

It may be appropriate for the District Court to conduct a hearing if it deems further investigation necessary to properly ascertain the motives and credibility of Sinclair, identify, explain, and weigh inconsistencies (if any) between the letter and Sinclair’s trial testimony, and otherwise analyze and weigh the merits of Stephenson’s claim.

Every lawyer can divide by three

Lawyers need to put food on the table. Which means that when they win a case, they start thinking about recovering attorneys' fees. In certain claims, the fees are paid by the losing defendant. You might even have a separate round of litigation over the fees. That's what happened here.

The case is Munter v. Hickey, a summary order decided on February 22. The Second Circuit does not tell us what this class action was about, but someone was suing someone else for God knows what, and there was a settlement fund from which the prevailing attorneys would draw their fees. They wanted 33 percent of the settlement fund, the usual contingency rate. But the district court crossed that out and only gave plaintiffs 20.3 percent of the settlement fund, stating that "the Court finds that the amount of fees awarded is fair and reasonable in light of the time and labor required, the novelty and difficulty of the case, the skill required to prosecute the case, the experience and ability of the attorneys, awards in similar cases, the contingent nature of the representation and the result obtained for the Class." The district court provided no other explanation for reducing the lawyers' share of the settlement fund.

Under the case law, when judges reduce attorneys' fees awards, they have to provide a detailed reason. The above quotation from the district court, while lengthy, tells us very little. So the Court of Appeals (Kearse, Pooler and Sack) sends it back to the district court to again determine if 33 percent or 20.3 percent is the right amount taking into account the following Goldberger factors:

The Goldberger factors include: (1) counsel’s time and labor; (2) the litigation’s magnitude and complexity; (3) the risk of the litigation; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations.

A look at the district court docket sheet tells us why the case went to the Court of Appeals. Defendants were sued under the Securities Exchange Act, over workers' compensation trusts. The case settled for $1.950 million. As counsel for the plaintiffs argued to the district court in attempting to reverse the initial fee award, the difference between a one-third fee award and a one-fifth fee award was quite substantial:

Plaintiffs requested a fee award of 33% of the Settlement Fund, which would amount to an award of $643,500 – a negative multiplier of 0.60. Under the Court’s Order however, the award of attorneys’ fees would be $395,850 and would result in a negative multiplier of 0.37. Lead Counsel respectfully submits that an attorneys’ fee award that amounts to a negative multiplier of 0.37 does not “adequately compensate counsel for the risks of pursuing such litigation and the benefits which would not otherwise have been achieved but for their persistent and diligent efforts.”