Forum selection clause in employment agreement sends Title VII case to California

The Court of Appeals has ruled that a Title VII plaintiff who signed a forum selection clause when she commenced employment in New York must litigate his claim in California.

The case is DeBello v. VolumeCocomo Apparel, a summary order issued on December 28. Plaintiff worked for a clothing manufacturer for an annual salary of $360,000. The salary was reduced over time and plaintiff was eventually fired without explanation after he complained about workplace harassment over his perceived sexual orientation. He filed suit in the Southern District of New York, but the trial case granted defendant's motion to transfer the case to state court in California pursuant to a forum selection clause that plaintiff signed, stating that any dispute arising from the employment relationship must be venued in the Superior Court in Los Angeles. 

A forum selection clause is presumptively enforceable if it was ʺreasonably communicated to the party resisting enforcement,ʺ has ʺmandatory force,ʺ and ʺcovers the claims and parties involved in the dispute.ʺ Plaintiffs can overcome that presumption if the clause ʺwould be unreasonable or unjust.ʺ The Second Circuit says:

We decline to enforce a forum selection clause if: ʺʹ(1) its incorporation was the result of fraud or overreaching; (2) the law to be applied in the selected forum is fundamentally unfair; (3) enforcement contravenes a strong public policy of the forumʹ in which suit is brought; ʹor (4) trial in the selected forum will be so difficult and inconvenient that the plaintiff effectively will be deprived of his day in court.ʹʺ

Plaintiff chooses option three, the public policy objection, arguing that "the forum selection clause at issue contravenes a strong public policy, reflected in Title VIIʹs special venue provision, for litigating employment discrimination claims in a local venue affected by the discriminatory acts." As it happens, Title VII provides for venue in judicial districts where the discrimination took place, where the relevant documents are located and where the plaintiff would have worked but for the discrimination. If the employer is not located in any of those districts, then venue is proper in the district where the employer's principal office is located.

The Second Circuit notes that while no circuit court ruling is on point, district court cases have held that forum selection clauses are not enforceable when they conflict with Title VII's special venue provision.

But in this case, "DeBelloʹs public policy argument does not overcome the presumption that 'a valid forum‐selection clause [should be] given controlling weight in all but the most exceptional cases.' . . . We are not persuaded here that the freely‐bargained forum selection clause is unenforceable based solely on its conflict with a policy preference reflected in Title VIIʹs special venue provision. Although DeBello is deprived of his choice of venue, he retains his right to litigate his discrimination claims." And, the Court of Appeals says, "DeBello, an experienced professional who was hired for an executive position at a relatively high salary, willingly entered into his employment agreement knowing it contained a forum selection clause, and he did so after he had the opportunity to consult with an attorney and make changes to the Agreement. VolumeCocomo is headquartered in Los Angeles and DeBello regularly interacted with VolumeCocomoʹs California‐based employees."

A primer on "John Doe" police litigation

A potential client walks into your office because she wants to sue the police, who assaulted her for no reason. The problem is that you don't know who the officers are. Lawsuits have to identify the defendants by name. If you don't know their names, how do you proceed?

The case is Barrett v. City of Newburgh, a summary order decided on December 21. The answer is that you have to name the defendants as John or Jane Doe. Eventually, you have to name them before the statute of limitations runs out, though there are some exceptions. There is relatively little guidance on John Doe litigation. This case provides a primer.

Plaintiff had a confrontation with the police. She sued the City and John Doe defendants. Under Rule 15(c)(1)(c), "lack of knowledge of a John Doe defendant's name does not constitute a mistake of identity," which means you have to name them before the statute of limitations runs out. But under CPLR 1024, a plaintiff who identifies a John Doe defendant by name can do so outside the statute of limitations if he exercises "due diligence, prior to the running of the statute of limitations, to identify the defendant by name" and he describes the John Doe party in such a way that the correct party is fairly apprises that he is the correct defendant.

The Court of Appeals (Raggi, Jacobs and Droney) notes that the due diligence standard "is not forgiving." The plaintiff has to get moving on this as soon as he files the complaint. The Second Circuit cites federal trial-level and state appellate rulings that bear this out. In the end, "A plaintiff exercising due diligence will take concrete and timely steps to ascertain an officer defendants' identity, for example by submitting multiple discovery demands" or FOIL requests.

The Second Circuit says plaintiff did not exercise due diligence. The Monell claim against the City was dismissed in March 2014. In March 2015, plaintiff filed formal discovery demands on the City's lawyer for police reports relating to the incident. The City did not respond to this, so plaintiff asked again in July 2015. Again, nothing, so she served a subpoena duces tecum on the Police Chief for this information, which finally arrived "months later." The Court thinks the City should have provided these names sooner. But the focus here is on plaintiff. While "she pursued at least avenues to identify the officers," "for reasons not clear to the Court, Barrett waited more than two years after the events took place to begin to inquire into the names of the defendant Does." This sequence convinces the Court of Appeals that the district court did not abuse its discretion in denying the motion to file an amended complaint that would have named the John Doe defendants.

The "situation" put defendant on constructive notice of sexual harassment

I don't think the Second Circuit has issued a major sexual harassment ruling this year. This case comes closest, but it's a summary order with limited precedential value. Still, its an interesting ruling that covers employer liability for co-worker sexual harassment.

The case is MacCluskey v. University of Connecticut Health Center, issued on December 19. Plaintiff was a dental assistant. In 2008, she began working with a dentist, Dr. Young, who was disciplined for sexually harassment in 2000 and given a "last chance agreement" that ordered him to see a psychiatrist and said any further unwanted sexual behavior could result in his termination. After Dr. Young made unwanted sexual advances on plaintiff, she told two co-workers who in turn told a supervisor, Gendell, who then asked plaintiff about this "situation." Plaintiff said there was in fact a "situation" but said she had it under control. Gendell did not know about the last-chance agreement. Later on, Dr. Young again sexually harassed plaintiff, this time putting his hand up her shirt. After management investigated, Dr. Young resigned to avoid termination.

The case went to trial and the jury awarded plaintiff $200,000. The judge reduced it to $125,000. The Court of Appeals (Parker, Lynch and Chin) upholds the verdict, reasoning as follows:

While the employer took immediate action once it found out about the second round of sexual harassment against plaintiff, defendant did not exercise reasonable care to prevent the harassment because it had constructive notice of the harassment, "that is, it should have known about the harassment in the exercise of reasonable care." Plaintiff's supervisors should have known about the last-chance agreement. Their lack of knowledge of the agreement was negligent on defendant's part. Management should have been monitoring Dr. Young to ensure he did not violate that agreement, particularly since he was working closely with plaintiff. When plaintiff complained about the "situation," Gendell should have taken that information seriously and asked follow-up questions. His failure to do so supports the liability verdict.

The Court adds, "There was enough notice that Gendell was prompted to inquire, and instead of asking an informal question in a hallway, she should have conducted a deeper inquiry. Moreover, she should have known about Young's earlier conduct and the last chance agreement, and that knowledge surely would have provided reason for a more probing inquiry" when defendant "became aware there was a 'situation.'"

FLSA claims are arbitrable

Arbitration is the name of the game these days. Employers like arbitration clauses because they take the case away from the jury and in theory are less expensive to litigate. The Supreme Court has been upholding arbitration claims left and right, in the context of employment discrimination and consumer protection suits, so much that many critics think that certain now-legal arbitration clauses will dissuade legitimate plaintiffs from proceeding to arbitration because their claims are not valuable enough without the class actions that arbitration clauses sometimes prohibit. The issue in this case is whether wage and hour cases under the Fair Labor Standards Act can be sent into forced arbitration.

The case is Rodriguez-Depena v. Parts Authority, decided on December 12. The Court of Appeals does not get into the facts other than to say plaintiff's employment contract said that any dispute "arising out of the contract" must be arbitrated. Is that legal? Yes, says the Second Circuit (Newman, Calabresi and Pooler).

The Court starts off by noting that "statutory claims are arbitrable unless Congress 'has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." The Supreme Court said that in Gilmer v. Interstate, 500 U.S. 20 (1991), a case brought under the Age Discrimination in Employment Act. Under Gilmer, age discrimination claims are arbitrable. So are FLSA claims, the Court now holds.

We don't have much analysis from the Second Circuit on this issue. Instead, the Court adopts Judge Weinstein's reasoning in Bynum v. Maplebear Inc., 160 F. Supp. 2d 527 (E.D.N.Y. 2016). So if you want to know the rationale for the holding in this case, you have to read Bynum. In that case, Judge Weinstein notes that "According to general principles of contract law, 'a party is bound by the provisions of a contract that he signs, unless he can show special circumstances that would relieve him of such an obligation.'" In addition, "The federal policy favoring arbitration extends to the enforcement of agreements to arbitrate claims founded on statutory rights." With these settled propositions behind us, you know the result:

The decisions of the Supreme Court, as well as of courts both within and outside this circuit, indicate that valid arbitration agreements subjecting individual FLSA claims to arbitration must be enforced in accordance with the FAA. The Supreme Court has declared: "`[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.'" Where the arbitration procedure provided would be unfair to the worker, the court may, as in this case, take into account protective equities and law due to the plaintiff under the FLSA.

Court denies public employee speech case

This First Amendment retaliation case holds that a computer specialist at an update NY school district cannot bring a claim because his speech was not protected under the First Amendment.

The case is Holmes v. Schoharie Central School District, a summary order decided on December 13. Plaintiff's job title was computer support technician. A school principal, Gillis had a legal dispute with the district. Plaintiff agreed to speak up on Gillis's behalf and agreed to testify as a character witness on her behalf. When the school district received an e-discovery request from Gillis's attorney, the district did not tell Holmes about this. Holmes then agreed to testify as a character witness for Gillis. He also complied with a subpoena from Gillis's attorney requesting an email archive from the former superintendent. After all this happened, the district retaliated against Holmes.

So what's it all mean? Holmes cannot proceed with a First Amendment lawsuit unless he spoke on a matter of public importance. He must also speak as a citizen and not as an employee. Employee speech is not protected if the plaintiff speaks pursuant to his job duties. So that the comptroller's speech about wasted money is not free speech. The comptroller's speech about corruption in some other part of the district is free speech.

At oral argument in this case, Holmes's lawyer said his speech was protected because he turned over the materials on his own, not pursuant to his job duties. He also argued that his actions were contrary to the district's interests, further taking the speech away from his job duties. The Court of Appeals (Livingston, Cabranes and Goldberg (visiting judge)) disagrees, treating this as a traditional speech case where the plaintiff merely spoke pursuant to his duties. "As the computer support technician, it was well within the scope of Holmes's ordinary duties to respond to a subpoena for electronic documentation." (The Court does not deal with plaintiff's other speech acts). That makes plaintiff's speech work speech, not citizen speech. The case is dismissed.

Good-faith exception makes unlawful search legal under Fourth Amendment

This case reminds us that the Supreme Court tells the lower courts what to do, and that the law changes over time, which means the Court of Appeals must determine whether its precedents remain good law after the Supreme Court issues a ruling. In this search and seizure case, the law did change post-Supreme Court, but the defendant still loses the appeal.

The case is U.S. v. Gomez, decided on December 5. The police stopped Gomez after surveilling him for drug trafficking. for traffic violations. When the police stopped Gomez, he seemed nervous. Shortly after the police told Gomez they were conducting an investigation into heroin and firearms in the City of Hartford, they asked Gomez questions relating to the traffic stop, they asked if they could search the car. Gomez consented to the search, which revealed narcotics.

In 2005, the Supreme Court said that "a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete the mission." That case was Illinois v. Caballes. A few years later, in Arizona v. Johnson, the Supreme Court said "a stop remains lawful so long as such inquiries do not measurably extend the duration of the stop." After the lower federal courts issued conflicting rulings about how long or short the stop must be to trigger Fourth Amendment protections, the Supreme Court in Rodriguez v. United States (2015) said "the critical question is not whether the unrelated investigation occurs before or after the officer issues a ticket, but whether conducting the unrelated investigation prolongs -- i.e. adds time to -- the stop." This means that "an officer does not earn bonus time to pursue an unrelated criminal investigation by completing all traffic-related tasks expeditiously because the reasonableness of a seizure . . . depends on wheat the police in fact do."

This means that, under Rodriquez, prior Second Circuit case law on this issue is abrogated, that is, it no longer remains good law. Any prolonged police stop, no matter how brief, violates the Fourth Amendment. The stop in this case, then, was unconstitutional because "from the moment Campbell first approached the black Honda, his questioning detoured from the mission of the stop (Gomez's traffic violations" to the DEA's heroin-trafficking investigation." Good new for Gomez.

Actually, bad news for Gomez. The Second Circuit (Droney, Parker and Wesley) goes on to hold that the "good faith" exception under the Fourth Amendment makes the search legal. The police can invoke the good faith" rule if they are relying on old case law that was objectively reasonable at the time but no longer remains good law. Since suppressing the evidence in those circumstances would not deter bad police work, the search will stand up in court. That is the case here, and the conviction is affirmed on appeal.

Hearst interns not entitled to salary under the FLSA

The Court of Appeals over the last year or so has clarified the rules governing when interns are entitled to salary under the Fair Labor Standards Act. So far, the Court has been ruling against the interns. It does so in this case as well.

The case is Wang v. Hearst Corporation, decided on December 8. Here are the standards governing when interns are really employees and are entitled to payment for their services:

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

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

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

4. The extent to which the internship accommodates the internʹs academic commitments by corresponding to the academic calendar;

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

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

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

This test derives from Glatt v. Fox Searchlight Pictures, 811 F.3d 528 (2d Cir. 2016), which the principle case in the Second Circuit on this case. The multiple plaintiffs in this particular case worked for Hearst publications and were interested in careers in fashion. One interned for Cosmopolitan. They did perform tasks relating to their professional pursuits and gained valuable knowledge and skills. But they also complained many of their duties were menial and repetitive, did not receive close supervision or guidance and there was little formal training. They mastered most of their tasks within a few weeks but did the same work for the rest of their internships.

So are they interns or employees under the FLSA? The Court of Appeals (Jacobs, Cabranes and Wesley) says factors 1 and 7 favor Hearst because plaintiffs did not expect payment or entitlement to a job.

As for factor 2 (training), the Court says plaintiffs "would . . . limit the discussion of beneficial training . . . to education that resembles university pedagogy to the exclusion of tasks that apply specific skills to the professional environment." That Court does not see it that way. "Training" under the Glatt test "clearly contemplates that training opportunities offered to the intern include products of experiences on the job." While plaintiffs tacitly assume that professions, trades and arts are or should be just like school, "many useful internships are designed to correct that impression."

Factors 3 and 4, dealing with academic integration and the academic calendar, favors Hearst for most of the interns because for one, the internship was a graduation requirement, and for another, the internship meshed with her academic major.

Moving to factor 5, this also favors Hearst because "practical skill may entail practice, and an intern gains familiarity with an industry by day to day professional experience."  As for favor 6 -- which considers the extent to which an intern's work complements the work of paid employees or displaces it -- the Court notes that "An intern’s work is complementary if it requires some level of oversight or involvement by an employee, who may still bear primary responsibility." This favor is not dispositive.

All told, the factors favor Hearst. While plaintiffs argue that any mixed inferences require a trial, under the totality of the circumstances, Hearst wins as a matter of law. The mere existence of some factual dispute is not enough for trial under general summary judgment principles, and "Status as an 'employee' for the purposes of the FLSA is a matter of law, and under our summary judgment standard, a district court can strike a balance on the totality of the circumstances to rule for one side
or the other."

Judge can bring discrimination lawsuit under City Human Rights Law

Judges are employees, too, right? At least this judge is. She is an Administrative Law Judge who works for a New York City agency, the Department of Consumer Affairs. She sues the agency for sex and age discrimination, as well as retaliation.

The case is Kassapian v. City of New York, an Appellate Division ruling handed down on November 15. The plaintiff mostly sues under the New York City Human Rights Law, which provides greater protections than the New York State Human Rights Law and Title VII. The appellate court summarizes her claims this way:

The complaint alleged that the plaintiff and other ALJs spoke out internally within the agency and externally to public officials and the press about an alleged [Department of Consumer Affairs] practice of improperly pressuring ALJs to issue recommended decisions in favor of the agency and to impose maximum fines. The plaintiff was allegedly demoted and subjected to other retaliation due to this speech and to her complaints concerning alleged sexual harassment.

It goes without saying that the alleged pressure for ALJs to issue certain rulings would be a major scandal. But the Appellate Division focuses mostly on whether she has an actionable claim.

On the sexual harassment claim, plaintiff may proceed to discovery upon claiming a coworker "repeatedly demonstrated a sex toy to the plaintiff." She submitted an affirmation from a coworker that corroborates this allegation. This may not constitute a hostile work environment under Title VII (as the harassment must be severe or pervasive), but the rules are different under the City law, which says that any contention that "the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss." The Second Department cites a well-known First Department case for this proposition, Williams v. New York City Hous. Auth., 61 A.D.3d 62 (1st Dept. 2009), so I wonder if this is the first time the Second Department has ruled this way. If it was not the standard in the Second Department in the past, it is now.

Plaintiff also has an age discrimination claim based on a demotion. We don't know much about this claim except that the individual defendants are the same age as plaintiff. That does not mean she does not have a claim under the City law. Another example of how the City law provides greater protections for plaintiffs than federal law.

Finally, we got ourselves a First Amendment retaliation claim arising from the corruption speech. Not only did plaintiff speak on a matter of public concern, but "the allegations that the plaintiff was demoted following the internal complaints, and that she suffered a campaign of harassment following the external complaints, sufficiently pleaded that the subject speech was a substantial or motivating factor for an adverse employment action."

Every lawyer's nightmare

In this case, the plaintiff's lawyer had three court conferences at the same in three different counties. He tried to attend all the conferences but, of course, that plan failed and he did not make it in time for his federal court appearance in Brooklyn. So the judge dismissed the case after waiting 29 minutes for counsel to appear.

The case is Smalls v. County of Suffolk, a summary order decided on December 4. We all remember how judges react to lawyers who show up late, if at all. We had a judge in White Plains (since retired) who would simply have the court conference without the other lawyer present. Another judge in White Plains will have the conference by calling the offending lawyer and having him participate by phone. A judge at Foley Square would sit on the bench and look at the clock every few minutes before announcing how much time had elapsed since counsel was supposed to be in court. Things are different in state court; the judges put the case at the end of the calendar in assuming the late lawyer is somewhere else in the courthouse before a different judge.

In this case, it was the second time counsel failed to appear for a conference. The case was dismissed sua sponte with prejudice. The Court of Appeals (Leval, Hall and McMahon [D.J.]) reinstates the case, holding that dismissal was too harsh a remedy "because the dereliction of Plaintiffs' attorney could be appropriately dealt with by a monetary sanction on the attorney, instead of so harshly sanctioning the Plaintiffs who were innocent of the dereliction."

While it is true the court can dismiss a case for failure to prosecute under Rule 41(b), that dismissal must "be proceeded by particular procedural prerequisites, including notice of the sanctionable conduct, the standard by which it will be assessed, and an opportunity to be heard." That test draws from Baptist v. Sommers, 768 F.3d 212 (2d Cir. 2014). That procedure was not followed here. While "there was no excuse for counsel's failure to notify a busy district court judge that his obligations to appear on the same morning in three separate courtrooms in three counties made it likely that he would be late for the conference, . . . the sanction imposed was needlessly severe and punished the wrong person." The Second Circuit suggests a monetary sanction on remand might work.

NY Court of Appeals rejects federal standard for punitive damages under NYC Human Rights Law

The New York Court of Appeals has outlined for the first time the legal standard governing punitive damages under the New York City Human Rights Law. The court rejects the willful/malicious standard that governs Title VII in place of a lesser standard, consistent with the City law's directive that courts liberally interpret this remedial statute beyond the reach of Title VII.

The case is Chauca v. Abraham, decided on November 20. I argued the appeal. The case reached the New York Court of Appeals because the Second Circuit sent it over the New York court for clarification on this issue. As the case originated in the Eastern District of New York, where Chauca won a pregnancy discrimination verdict but was denied the opportunity to seek punitives, Chauca appealed to the Second Circuit, seeking a remand on the punitive damages issue. The Circuit certified this issue to New York's highest court, which now clarifies the punitive damages equation under the City law.

We argued that the punitive damages standard is the same as the liability standard: if you discriminate, you risk punitive damages. That argument is based on statutory construction and the general goals of the City law. The New York Court of Appeals disagreed, ruling that punitives under the City law are governed by the following common law standard:

a plaintiff is entitled to punitive damages where the wrongdoer's actions amount to willful or wanton negligence, or recklessness, or where there is "a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard."

This standard is more pro-plaintiff than Title VII, which provides for punitive damages on the following basis:

The Title VII standard requires "intentional discrimination . . . with malice or with reckless indifference to the . . . protected rights of an aggrieved individual" and the Supreme Court has specified that "the terms `malice' or `reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination."

In 2001, the Second Circuit held that the Title VII standard governs the City law's punitive damages entitlement. That case is Farias v. Instructional Systems, Inc. (259 F.3d 91 [2d Cir 2001]). In 2005, the NYC Council directed courts to interpret the City law separate and apart from Title VII, admonishing courts that had assumed both statutes carried the same standards. In certifying Chauca to the New York Court of Appeals, the Second Circuit appeared ready to jettison Farias. This ruling from the New York Court appeals rejects Farias, which now is no longer good law.

Judge Wilson dissents from his 6 colleagues on the New York Court of Appeals, agreeing with Chauca that the punitive damages standard under the City law is identical to the liability standard.

The case now returns to the Second Circuit, which will apply the New York Court of Appeals' standard to the facts in Chauca in determining whether Chauca is entitled to a hearing on punitive damages in the Eastern District of New York.

Qualified immunity takes away $62,000 verdict for inmate

This case is a good example of how qualified immunity works. The plaintiff is incarcerated. He won his trial on the due process claim arising from his administrative segregation. The Court of Appeals agrees that plaintiff's rights were violated, but it takes away the verdict because the defendants are entitled to qualified immunity.

The case is Allah v. Milling, decided on November 22. Connecticut inmates are classified upon entering jail based on certain risk factors, including their disciplinary history and their propensity for violence. Upon his return to prison, he was placed in the a restrictive setting because that's where he was when he last left the Big House. In this setting, he spent 23 hours a day in his cell and endured other indignities, like limited showers and physical restraints. Finding that jail officials violated the due process clause, the trial court ruled in his favor and awarded Allah $62,650 in damages.

The Court of Appeals taketh away the verdict. Prison officials have leeway in classifying pretrial detainee under the due process clause, but they cannot place restrictions solely in order to punish them, particularly since they have not yet been found guilty of anything. There must be a legitimate governmental purpose in classifying inmates. Courts don't like to second-guess jail decisions, but until the Constitution is found to longer apply to prison decisionmaking, judges will not hesitate to rule in an inmate's favor if the facts warrant it.

The Circuit (Lynch, Katzmann and Pooler) finds that Allah's rights were violated because the jailers did not make an individualized decision in placing him in the most restrictive classification. They simply made the placement because that's where plaintiff was when he last left prison. But that does  not end the inquiry. Public officials are immune from suit if they did not violate the plaintiff's clearly-established rights, as determined by settled Supreme Court and Second Circuit precedent. Qualified immunity gets many public officials off the hook, as a rights violation may not have been apparent at the time they were exercising their discretionary decisionmaking. That's the case here.

While prison officials many not punish people in jail prior to an adjudication of guilt, that legal principle is too general in determining whether the defendants are entitled to qualified immunity. In answering this question, we consider whether other cases on these or similar facts are on the books. There are none. Instead, the jailers were following established Department of Corrections practice in sending Allah to administrative segregation. "No prior decision of the Supreme Court or of this Court ... has assessed the constitutionality of that particular practice." In dissent, Judge Pooler states that Allah was placed in solitary for no good reason and that the Supreme Court in Bell v. Wolfish has prohibited such decisionmaking.

Grunt work does not make an intern an employer under the state labor law

Under the state labor laws, interns who obtain an educational benefit from their placements are not employees and are therefore not entitled to the wage protections that everyone else gets. In this case, the plaintiff was placed in an internship at a nursing and rehabilitation center. But she wants to get paid because she did not obtain any educational benefits from her placement. The Court of Appeals disagrees, and plaintiff gets zero dollars for her time.

The case is Sandler v. Benden, a summary order issued on November 13. Plaintiff says that during her time at Bayview Manor, she did "grunt work" and only "secretarial tasks" but receiving nothing of educational value. After she complained about this, she was dismissed from Bayview and expelled from college. She was later reinstated at college but did not receive course credit for her year-long internship. So wasn't she just another employee and not an intern? No.

In 2015, the Court of Appeals devised a multi-part test in determining when an intern is really an intern and not entitled to the benefits of the labor law, such as minimum wage. That case  is Glatt v. Fox Searchlight Pictures, 811 F.3d 528 (2d Cir. 2015). This eight-part balancing test is all the more trickier since no single factor is dispositive.

In this case, factors that hurt plaintiff's case are (1) she did not expect compensation when she started the internship and (2) she did receive educational training during her internship as she was assigned an individual client at the facility and received one group assignment. Also, she had to write down her experiences as a social work intern. And she would have received academic credit had she completed the program. In addition, the duration of her internship coincided with the academic calendar year and she was never promised a paid position at the facility upon the completion of her internship. While she was given "drudge work," that alone is not enough. The Court of Appeals has held that "employers could receive an immediate advantage from unpaid interns." In other words, interns perform grunt work for which there is no paycheck.

State Court of Appeals upholds protective vehicle search

In this case decided by the New York State Court of Appeals, the judges find that the police were allowed to conduct a limited protective search this guy's car because they reasonably thought the car had weapons.

The case is People v. Hardee, decided on November 16. This brief ruling does not tell us what happened to occasion the search. But a lengthy dissenting opinion from Judge Stein (joined by two other judges, making this a 4-3 ruling) gives more detail. According to the dissent, the police pulled over defendant in Manhattan for driving more than 20 MPH over the speed limit. When the police pulled him over, he seemed nervous and hyper and admitted there was alcohol in the car. He also looked over his shoulder a few times and did not exit the car until the police had asked him to do so two or three times. Once out of the car, he was cooperative during the frisk, but with his hands placed against an adjacent vehicle, he looked over his shoulder a few times toward his car. When the police searched the car, they found a bag inside. They found a gun inside.

The majority said this search was legal under the Fourth Amendment. The dissenters say it was not. They note that the Fourth allows the police to conduct a limited protective search if they reasonably think the car has a weapon inside, and that "it may be difficult for police officers to determine whether suspicious behavior is merely ordinary nervousness related to police encounters, indicates the presence of a weapon" or the existence of other contraband.

Judge Stein makes it clear that suspects do not have to actually retrieve a weapon before the officer may believe the car has a gun or some other contraband. But this case does not cut it, she writes, because "no facts . . . established that, at the time of the search,  defendant had displayed any behavior that would give rise to a belief that a weapon located in the vehicle presented an actual and specific danger to the safety of the officers." She adds, "even assuming that there was a reasonable basis to believe that there was a weapon in the car -- a factor which I do not concede is satisfied here -- there is no record support for a finding that a protective search was justified."

Not only did defendant not evade the police vehicle or refuse to pull over his car, Judge Stein writes, but his nervousness was not sufficient to justify a protective search, as per Court of Appeals case law. He did not reach into his car to retrieve anything, and he exited the car without any hostility. This is a lengthy dissent, particularly since the majority ruling is only a few paragraphs long. But Judge Stein can only get two judges to join her. That's not enough for a majority, so the conviction for possessing an unlawful weapon is sustained.

Inmate religious freedom claim is revived, despite purportedly "bizarre" ritual

I always take notice when a pro se inmate prevails on appeal in the Second Circuit. Lawyers who work for the government are quite skilled. But these lawyers do not always win. A good case is a good case. I don't know what to make of this case, but it returns to the trial court because the district judge erroneously ruled against the plaintiff-inmate.

The case is Grief v. Quay, a summary order issued on November 13. Plaintiff brings this action under the Religious Freedom Restoration Act, a federal statute that provides that the government cannot substantially burden the exercise of sincerely-held religious beliefs without a compelling government interest. This law even protects inmates who want to practice their religious beliefs. The public may not like this, but inmates have rights, too, though those rights are limited since they are incarcerated and the jailers have leeway in regulating what goes on in the big house.

In this case, the trial court threw out the case from the outset, ruling that plaintiff's religious beliefs were too bizarre to qualify for a case like this. The trial court said that Grief's "belief that stuffed animals are necessary for his religious practices falls within the category of beliefs that are 'so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection.'" The Second Circuit opinion does not tell us precisely what plaintiff's religious practices were, or how the stuffed animals factor into those religious practices. But the district court ruling gives us the detail:

“[h]is beliefs stem from his understanding of various religions like bhuddism [sic] and native american and also from science and science fiction as well as his life experiences.” According to Plaintiff, “[o]nce enlightenment is attained your spirit becomes part of the collective consious [sic],” and “[t]hese spirits can embody people, animals, and any objects to help guide you in meditation toward enlightenment,” but “[t]he spirit guide must be physically present to guide you during meditation.” Plaintiff’s spirit guides are animals; he “finds spiritual guidence [sic] from his stuffed animals during meditation,” but “cannot do any meaningful meditation” “[w]ithout being able to posess [sic] an animal or stuffed animal.”

The Second Circuit (Katzmann, Droney and Lohier) revives the case, as the district court's reasoning is improper. The Circuit reasons:

Whether a professed is entitled to free exercise protection under our precedents requires a determination by the "factfinder" regarding "whether the beliefs professed are, in the claimant's own scheme of things, religious." Accepting Grief's allegations as true and construing the complaint in the light most favorable to him, with the special solicitude that we afford to a pro se litigant, we conclude that the district court erred in deciding that Grief's belief regarding stuffed animals could not plausibly constitute a religious belief.

The pitfalls of appellate practice under Section 1983

A key difference between appeals in state and federal court is that in state court you can appeal any court ruling, even if the case is not even resolved. In federal court, you have to wait for the case to be resolved in its entirety before you can take an appeal. This reduces the number of federal appeals. There are exceptions to the federal rule, but those exceptions are narrow.

The case is Latreille v. Gross, a summary order decided on November 15. This is a public employee First Amendment retaliation case. Plaintiff worked for Orange County. The decision is not clear on this, but she was evidently disciplined for disclosing certain public assistance information to law enforcement. Public employees do have some speech rights, but they are limited under Garcetti v. Ceballos, 547 U.S. 410 (2006), which says employee speech is not protected under the First Amendment if the employee speaks pursuant to her job duties and does not speak as a citizen. The trial court denied the County's summary judgment motion on this issue.

Normally, when the court denies defendant's summary judgment motion, the case heads to trial or the parties settle. But in Section 1983 cases, individual defendants can invoke qualified immunity, which gets them off the hook if they did not violate clearly-established law. If the trial court denies that motion, the government defendant can take up an immediate appeal (we call it an interlocutory appeal) on the qualified immunity theory, on the basis that government defendants have the right to get out of the case at the earliest possible opportunity. The kicker, though, is that, in taking up the appeal, the government has to assume for purposes of the appeal that the plaintiff's version of events is correct and that, even under the plaintiff's side of the story, the government defendant is entitled to immunity.

This is easier said than done. Government lawyers certainly know that the rule that in order to take an interlocutory appeal, they have to assume for the time being that the plaintiff's account is true. But in writing the brief, government lawyers will still press their side of the story. The Court of Appeals is wise to this tactic, and it notes in this case that it dismisses these appeals all the time without reaching the merits because it often finds that the case is too fact-specific for appellate review at this early stage. That is what happened here. Here is how the Court of Appeals reasons it out:

Gross and Miller profess — as they must — to pursue their interlocutory appeal based on the facts alleged by Plaintiff-Appellee Nicole S. Latreille. However, upon our review of the record and despite Gross and Miller's representations to the contrary, we conclude that Gross and Miller do not proceed on this basis. We thus must dismiss their appeal for lack of appellate jurisdiction.

As one example, Gross and Miller spend considerable time arguing that Latreille's disclosures to law enforcement of public assistance records, insofar as they related to welfare fraud, were within the scope of her professional responsibilities and therefore not constitutionally protected. Based on the record, we lack jurisdiction to review this challenge. The district court determined that "[t]he parties don't dispute that Plaintiff's investigation was outside of her official job responsibilities." S.A. 15-16 (emphasis added). And there is ample record evidence that Latreille's job responsibilities did not include fraud investigation of any sort, whether it be welfare or mortgage fraud. See, e.g., J.A. 120 (noting that it is not "within [Latreille's] job description to conduct investigations into fraud"); id. at 113 (noting that the work "expanded beyond [her] job duties"); id. at 133 (noting that the information was not "pertinent" to Latreille's job); id. at 269 (noting that her "investigations and disclosures were outside the scope of her work responsibilities");id. at 552 (noting at Miller's deposition that "investigating to begin with" is not part of Latreille's duties); id. at 624 (noting in Bradshaw's complaint letter that "[t]his certainly is not part of our job description"). Some of this record evidence is even cited in Gross and Miller's own Rule 56.1(a) statement.

No false arrest case following workplace fracas

What you need to know about false arrest lawsuits is that the police officers win far more frequently than they lose. Probable cause is a defense to any false arrest case, even if the plaintiff was acquitted at the criminal trial, and even if the police dropped the charges prior to any trial. Nor do the officers have to conduct a thorough investigation prior to making an arrest that is later abandoned by the district attorney. And if all else fails, the police officers are immune from suit if the court finds the arrest was objectively reasonable, even if was a bad arrest in hindsight.

The case is Iocovello v. City of New York, a summary order decided on November 14. Plaintiff, a supervisor at the Department of Sanitation, was arrested for assaulting King, his subordinate, after a verbal dispute. Officer Francis spoke to plaintiff and King. Both men were arrested. Eyewitnesses to the fracas prepared written statements, each of which said King attacked plaintiff. While the parties dispute whether Francis read those statements before making the arrests, that does not matter, the Court of Appeals says, because even if Francis did see the statements, she had arguable probable cause to arrest plaintiff "based on King's statement alone."

You read that right: "arguable probable cause." That is a court-made doctrine that allows police officers to invoke qualified immunity in false arrest cases. The police can arrest you based on someone else's eyewitness account, even if that account is wrong or even a lie. The police cannot make the arrest if they know the statement is unreliable or tainted in some way. But that's tough to prove. Case after case is dismissed because the police do not have to conduct a thorough investigation prior to making the arrest.

How does plaintiff get around this? He says that his injuries were worse than King's injuries, and that King is a much larger man than plaintiff. "However, a reasonable officer responding to this workplace incident may have assumed that a fight involving both Iocovello and the much larger King could logically lead to the smaller person having the greater signs of injury. There was also no need for an in-depth investigation once Officer Francis heard King's version of the events, viewed evidence that a scuffle had occurred between Iovovello and King, and had no reason to doubt the veracity of King's statements." 

Supreme Court upholds death penalty for man who does not remember committing the crime

The Supreme Court resolved this death penalty case without hearing oral argument. It decides the case on the briefs. The Court holds that the State of Alabama can apply the death penalty to a man who no longer remembers killing his victim.

The case is Dunn v. Madison, decided on November 6. The facts are not complex. More than 30 years ago, Madison killed a police officer at close range. As his execution neared, Madison claimed he was not competent to be executed because he suffered a stroke. A court-appointed psychologist said Madison "understands the exact posture of the case at this point" and knows that Alabama is seeking retribution for his criminal act. Madison's expert said that while Madison does not remember the crime, he knows what he was tried for and knows he is in prison for murder even though he believes he "never went around killing folks."

This case arises in the posture of a habeas corpus proceeding. You can get habeas relief if the federal court finds that the state court conviction violated the U.S. Constitution. But a mere constitutional violation is not enough to win the habeas petition. You have to show the state court unreasonably applied clearly-established Supreme Court precedent. In other words, if the Supreme Court has not clearly addressed the issue raised in your habeas petition, you lose, even if, upon reflection and in hindsight, it appears the state court did violate the Constitution. Madison prevailed in the Eleventh Circuit. The Supreme Court reverses the Eleventh Circuit and Madison will be executed.

In Panetti v. Quarterman (2007), the Supreme Court said "the retributive purpose of capital punishment is not well served where the prisoner's mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole." In 1986, the Court questioned the "retributive value of executing a person who has no comprehension of why he has been singled out." That case was Ford v. Wainwright. These cases are close, but no cigar. These cases did not squarely address the issue raised by Madison's case: whether "a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case."

Justices Ginsburg, Breyer and Sotomayor concur in the Court's ruling. They write that "The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court." But that is not enough for the Court to hear the case. "Appropriately presented, the issue would warrant full airing." Under the habeas corpus law that Congress enacted in 1996, which talks about clearly-established Supreme Court authority and whether the state court committed a clear constitutional violation, Madison must lose.

Court finds no legal duty to protect crime victims

One of the real epiphanies in law school is when students learn that the law does not require people, and even the police, to affirmatively protect people. New York does not have a good samaritan law, such that if you see someone lying in the street calling for help, you are not legally required to help him. A related rule governs police conduct. We see that in this case.

The case is Torres v. Graeff, a summary order decided on November 8. In DeShaney v. Winnebago County (1989), the Supreme Court said the family of a young boy who was severely by his father could not sue the Department of Social Services for failing to protect the boy, even though DSS knew or should have known the boy was at risk, particularly since the boy was not in DSS custody.

The reasoning in DeShaney has been applied to the police. The Second Circuit has stated that "a [state actor's] failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." However, the Court has also stated that a state actor, such as the police, may be held liable to a victim of private violence under a theory of "state-created danger" if the police engaged in conduct that "affirmatively enhanced the risk of violence." That case is Okin v. Cornwall on Hudson, 577 F.3d 415 (2d Cir. 2009). Under Okin, the police may be found to have enhanced the risk of violence against someone "by providing the aggressor with assurances that he would be permitted to act with impunity." A plaintiff can allege the police had implicitly communicated with the violent actor through a showing of "repeated, sustained inaction by officers in the face of potential acts of violence."

This case does not satisfy that standard. There is no sustained inaction here. Plaintiff alleges that the police responded to a single report that a mentally-ill man was acting violently by placing him under custodial arrest under New York Mental Hygiene Law section 9.41. They also utilized force to handcuff and detain the man in the back of a police car, removing him from the premises and taking to the hospital for a mental health evaluation and instructing hospital staff to contact the police at a specified time before releasing him. The Court (Jacobs, Lynch and Crotty [D.J.]) writes:

The fact that the officers asked to be contacted at the conclusion of the medical evaluation rather than remain physically present during it cannot be read as having transformed their affirmative “interference” with Bumbolo’s violence and their unwaveringly adversarial posture toward him throughout the interdiction into a “plainly transmitted [] message that what he did was permissible and would not cause him problems with authorities.” The complaint therefore fails to state a constitutional claim against the officers. On the facts pled, the tragedy that ensued is simply not
one for which the officers may be held liable under the Due Process Clause.

Pro se plaintiff wins due process and Title VII appeal

Due process is enshrined in the Constitution, but the courts have made it difficult to sue over due process violations. In this case, the pro se plaintiff wins her appeal, reinstating her due process claim against the City of New York.

The case is Xu v. City of New York, a summary order decided on November 2. We don't know much about the due process claim, but the Second Circuit notes that if your due process rights are violated, the usual procedure is to bring an Article 78 following the property or liberty deprivation. That rule applies when a relatively low-level government employee shafts you through an "random or unauthorized act[]." In those cases, the Article 78 procedure is the due process. That rule does not apply, however, when the deprivation was perpetrated by "officials with final authority over significant matters, which contravene the requirements of a written municipal code, and can constitute established state procedure."

Since plaintiff "was improperly fired without a postdeprivation hearing because Municipal Defendants wrongly believed her to be a probationary employee who was not entitled to such a hearing," and plaintiff claims a high-level official orchestrated her termination, plaintiff has a due process claim. Plaintiff does not have to worry about the CPLR. She can avail herself of the beauties of the Federal Rules of Civil Procedure.

Plaintiff also has a discrimination claim under Title VII. She says a younger white male was treated more favorably on the basis of race. The disparate treatment included plaintiff receiving negative feedback while the white comparator got positive feedback. These and other allegations of disparate treatment allow plaintiff's case to proceed. Since this was a Rule 12 dismissal, mind you, the parties must pursue discovery. No doubt, the City will move for summary judgment once discovery is complete. Hey, why not? Government lawyers love moving for summary judgment.

Teacher cannot sue superiors in academic speech case

If you handle civil rights cases, you may have litigated free speech cases on behalf of public employees who claim they suffered retaliation for speaking out on the job. Prior to 2006, these cases involved employees who spoke out on matters of public concern, defined as any matter of political, social, or other concern to the community. That changed in 2006, when the Supreme Court decided Garcetti v. Ceballos, which said that, in order to win the case, the plaintiff must also show he spoke as a citizen. This means that public concern speech pursuant to the employee's official job duties is not protected speech. Garcetti changed everything in public employee First Amendment litigation. That impact remains with us.

The case is Lee-Walker v. New York City Board of Education, a summary order decided on October 17. I represented the plaintiff in this case. Plaintiff was a public school teacher who wanted to teach her high school students about the Central Park 5, a well-known rape case from 1989 in which five minority youths confessed to a horrible crime but were later exonerated because of the false confessions and evidence that someone else committed the crime. The complaint alleges that a school administrator objected to the class on political grounds, telling plaintiff that the students among other things might riot. Plaintiff alleges she was fired over the class. The lawsuit alleged that the First Amendment prohibited her termination.

In 2004, the Second Circuit held in Silano v. Sag Harbor School District that teachers had a First Amendment right to classroom speech but that school administrators could regulate that speech provided the restrictions are reasonably related to legitimate pedogogical objectives. In other words, the speech restrictions have to be reasonable. Silano would help Lee-Walker's case, since the administrator's objection to her class on the Central Park 5 was political and therefore unreasonable. At least that's the argument that I advanced. That argument, however, ran into Garcetti.

The Supreme Court in Garcetti did not purport to rewrite First Amendment retaliation law. But it did emphasize that "citizen speech" and not "work speech" is protected. This means that a public comptroller who blows the whistle on missing money can get fired for that speech, as it was the comptroller's job to say this. The janitor would have speech rights to blow the whistle on that issue, assuming he actually knew something about the embezzlement. Still, some judges in the Southern District of New York thought Garcetti simply meant that the plaintiff has no First Amendment retaliation case if he is disciplined for mandated speech, that is, where he speaks up because it is his job to speak on a particular matter. That was a reasonable interpretation, but the Court in Garcetti did not exactly say this because Justice Kennedy, who wrote the majority opinion, did not lay out what the decision really meant. That left it to the Circuit courts to interpret what the Garcetti Court had intended. In 2010, the Second Circuit did that in Weintraub v. Board of Education, which held -- over a vigorous dissent by Judge Calabresi -- that public employee speech is not protected under the First Amendment if it is "part and parcel" of his official duties. Here's the money quote:

under the First Amendment, speech can be “pursuant to” a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer. In particular, we conclude that Weintraub's grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties.”

The "part and parcel" language expands the employer's authority to regulate the speech. The standard does not just cover mandated speech but a great deal of work-related speech. As a practical matter, this means that anything of importance that a public employee might say would be unprotected under the First Amendment, precisely because the employee will most likely speak out pursuant to something she learned or observed in the course of her official duties. This could lead to strange results. In 2011, I argued an appeal in the Second Circuit, Moray v. Somers Central School District, in which the maintenance supervisor for a school district spoke out about asbestos flaking off the ceiling and onto the gymnasium floor, potentially harming students. The case was dismissed and we appealed. Hamstrung by Garcetti, but recognizing the importance of the plaintiff's speech, Judge Calabresi asked the school district's lawyer, "isn't this an absurd result?" We lost the appeal in a summary affirmance, another Garcetti casualty.

Garcetti was originally argued when Justice Sandra Day O'Connor was on the Supreme Court. When she retired from the Court in 2006, the Court ordered re-argument, a rare event probably occasioned by the departure of the Court's swing-vote. With a likely 4-4 vote on this issue, the Court wanted a full slate of judges to resolve this issue. That happened when Samuel Alito joined the Court, which then issued the 5-4 ruling in Garcetti. Alito voted with the majority, and Garcetti became the law of the land.

The problem is that Garcetti is not quite clear about what the Court was trying to do. Was the Court  re-writing First Amendment law in this area, deliberately making it more difficult for plaintiffs to win? Or was Garcetti a poorly-written ruling that was subject to interpretation, prompting lower court judges around the country to throw out cases that in years past would have made it to trial? I am going with the latter interpretation.

Two constitutional doctrines now doom most public employee speech cases. First, Garcetti, as I discuss above. The second problem is qualified immunity, which prevents plaintiffs from suing governmental officials for money damages if the law was not clearly established at the time of the incident. If the case law was not crystal clear that the defendant violated some constitutional provision, he gets the benefit of the doubt and the case is dismissed. The theory is that governmental officials are assumed to know the law but are not legal scholars and cannot anticipate how the courts will rule on a given set of facts. The reality is that many governmental officials do not really know the law and rely on their lawyers to make the qualified immunity argument. Nonetheless, qualified immunity is a true barrier to relief for many plaintiffs.

While it was issued in 2006, Garcetti continues to create a qualified immunity problem for plaintiffs. While Lee-Walker's case would probably proceed under the Silano v. Sag Harbor precedent, the Second Circuit in her case said the Silano precedent is no longer clear under Garcetti, as Lee-Walker did speak pursuant to her duties though in an academic context. Silano recognized that classroom speech is entitled to some constitutional protection. Garcetti raises some doubt about this, so Lee-Walker's case is dismissed on qualified immunity grounds. While courts do have authority to clarify the law for future purposes at the same time they find that the plaintiff in the present case does not assert the violation of his clearly-established rights, the courts rarely do this. The law governing academic speech will remain fuzzy and unenforceable for as long as the courts decline to issue a definitive ruling about what speech is protected.

I have had other cases that got lost in the Garcetti graveyard, each of them disregarding prior Second Circuit precedent. In Kiehle v. County of Cortland, the Second Circuit in 2012 held that a DSS social worker could not sue her superiors who fired her because of her courtroom testimony arising from one of her cases. While cases prior to Garcetti held that courtroom speech is sacrosanct and cannot predicate governmental retaliation (including Catletti v. Rampe, a case I argued in 2003), the Second Circuit held that her speech was unprotected under Garcetti. The Second Circuit reasoned:

as the district court concluded based on the indisputable facts, Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing; rather, she testified as a government employee — as a DSS caseworker. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Thus, the district court did not err in granting summary judgment to defendants.

We petitioned for certiorari in Kiehle, with help from the Yale Law School constitutional clinic, but the Supreme Court declined to hear the case. The Supreme Court later held in Lane v. Franks (2014) that courtroom testimony is protected under the First Amendment. Too late for Kiehle.

A few years later, I took an appeal on behalf of a public official in Nassau County who was fired after he spoke before the County Legislature. A Second Circuit case, Piesco v. City of New York, held that public workers cannot be fired over this speech, as an informed democracy requires public officials to address legislative bodies without fear of retaliation. Of course, I relied on Piesco in Williams v. County of Nassau. The Court of Appeals saw Williams' case as a clear Garcetti case and disregarded Piesco. We petitioned the Supreme Court to hear the case, enlisting legendary constitutional scholar Erwin Chemerinsky to draft the petition, but the Court declined to hear the case.

What can be done about the diminishing free speech rights of public employees? Forget about a constitutional amendment. The Constitution has been amended only three times in my lifetime, and the last time it happened was 1992 (on a non-civil rights issue having to do with congressional pay). Congress could pass a law, but that is always tricky because I don't see great sympathy among Republican congressmembers and the President for whistleblowers. Even if a law is passed, it might be targeted as unconstitutional, which is what happened when Congress in 1993 tried to overturn a restrictive Supreme Court ruling (Employment Division v. Smith) that scaled back the religious freedom rights under the Establishment Clause. Courts could find ways around Garcetti, but that is rare. The Second Circuit has had many opportunities to carve out exceptions to Garcetti but it rarely does so. The most realistic option is for courts to issue a clear statement of the law for future cases even while granting qualified immunity in a particular case. The Supreme Court says that is an option for the lower courts. So far, the lower courts are not taking the bait.

False arrest case proceeds to trial because of faulty identification lineup

The Court of Appeals holds that a false arrest plaintiff can take his case to the jury because the identification lineup that led to his arrest was faulty and the police arguably lacked probable cause from any other source to think the plaintiff played a role in a death at a nightclub in New York City.

The case is Dufort v. City of New York, decided on October 27. The facts are tragic no matter how you slice it. Plaintiff and his teenage friends were a club when an altercation broke out in the middle of the night. Surveillance video showed plaintiff entering the club with a metal pipe hidden in his clothing. Many people were involved in the attack. While the video shows plaintiff leaving the room when the fight began, holding the pipe, the video did not capture the fight. During the criminal investigation, a witness could not recognize plaintiff's face or other distinguishing characteristics, and she could only confirm that she had seen someone wearing a maroon sweatshirt participate in the attack. Plaintiff's sweatshirt was that color. When plaintiff was placed in the lineup (he was the only one in the lineup with the maroon sweatshirt), a witness identified plaintiff as one of the attackers; this was based solely on the color of the sweatshirt. Plaintiff was acquitted at trial.

False arrest cases cannot proceed if there was probable cause for the arrest. Probable cause presents a low threshold for the police. It amounts to less evidence than needed to convict. For this reason, most false arrest cases are thrown out on the motion for summary judgment. Not this one. There was no probable cause because the lineup procedure was defective. The witness could not recognize plaintiff's face, and she could only recognize the color of his sweatshirt as similar to that of one of the assailants. Then, during the lineup, this witness picked out plaintiff, the only one wearing a maroon sweatshirt during that procedure. As the lineup procedure substantially increased the dangers of misidentification, it was not good enough for probable cause. Without other evidence that would reasonably allow the police to think plaintiff played a role in the attack, there was no probable cause, and the case can proceed to trial.

The Court of Appeals (Walker, Livingston and Lynch) also allow the malicious prosecution claim to proceed to trial. While the defendant officers claim they cannot be sued because the prosecutor's decision to go after the plaintiff interrupts the chain of causation -- on the theory that the prosecutor's independent judgment confirms there was reason to prosecute the plaintiff -- that must be determined by the jury. The evidence suggests the DA's office pursued the prosecution after it was deliberately misled by the defendant officers. Plaintiff "has raised a triable issue of fact as to whether either the grand jury's indictment or the prosecutor's participation in his case constituted intervening causes that insulate the Defendants from liability." For these reasons, defendants cannot invoke qualified immunity as a matter of law. The Court says:

We conclude that it would be inappropriate to grant qualified immunity to these Defendants at the summary judgment stage. Dufort has established a dispute of material fact as to whether the Defendants intentionally withheld or manipulated key evidence during his arrest and prosecution. He has introduced sufficient evidence from which a reasonable jury could conclude that the Defendants placed him in a deeply defective lineup, extracted an "identification” from Park that was limited to the color of his clothing, and then withheld the suspect nature of this identification from prosecutors and the grand jury. Such a “knowing” violation of his Fourth and Fifth Amendment rights would, if proven, be enough to overcome the protection of qualified immunity. Although Dufort has not produced any direct evidence of a malicious intent on the part of the Defendants, he is not required to do so. Circumstantial evidence is generally sufficient to prove intent, and Dufort has introduced enough such evidence to survive summary judgment.

You can't sue the prosecutor

This case is something out of a movie. In the late 1980's business owner D'Alessandro suspected that his employee was stealing money from him. The employee alleged that D'Alessandro confined him in the basement for over 12 hours. D'Alessandro was arrested and convicted of kidnapping and related offenses. In 2010, the Appellate Division vacated the conviction because D'Alessandro's lawyer had failed to make a proper speedy trial motion prior to trial. D'Alessandro now sues the prosecutors.

The case is D'Alessandro v. City of New York, a summary order decided on October 17. D'Alessandro's case is dismissed. The first thing you need to know is that it is difficult, nearly impossible, to sue the prosecutor. Courts grant them immunity because, let's face it, they would be sued by every person they ever prosecuted. Specifically, if the prosecutor is sued over things he did as an advocate, there is no lawsuit. That includes matters the prosecutor handled while preparing for trial and trial itself. This immunity even applies if the prosecutor makes false statements during proceedings, or when he knowingly uses false testimony, deliberately withholds evidence favorable to the defendant and engages in malicious prosecution.

D'Alessandro says that defendant Morris failed to acquire a signed indictment, withheld exculpatory evidence, manufactured evidence, delayed production of grand jury minutes, etc. But since these acts took place when Morris was engaged in facts "intimately associated with the judicial phase of the criminal process," Morris is immune from suit. The same analysis applies to D'Alessandro's claim against Robert Morganthau, who was the DA at the time, and a legendary one at that.

Probably every civil rights lawyer receives phone calls from people who want to sue the prosecutor, even the judge. I tell potential clients that these cases cannot be filed (with very limited exceptions). People don't want to hear this, as the prosecutor and judge are the symbols of a system that shafted them. Of course, these immunities are judge-made doctrines. That only adds to the cynicism. Like it or not, these immunities will always be with us.

A false arrest case in the white collar world

Many of the false arrest cases in the Second Circuit involve people arrested for street-level crimes. This case is different. It examines false arrest in the context of Wall Street-style insider trading. The Court of Appeals rejects the claim and finds the federal government had probable cause to arrest a man who was wrongfully accused of insider trading.

The case is Ganek v. Liebowitz, decided on October 17. Ganek's office was raided by the FBI after the feds began investigating alleged improprieties at Ganek's investment house, known as LG. A former LG research analyst named Adonkakis cooperated with the FBI. While Adonkakis told the FBI he did not provide insider information to Ganek, the search warrant that a magistrate judge signed incorrectly said that Adondakis told Ganek about the insider information. This is how Ganek got searched. The FBI then issued a report that included this false information. In the end LG had to close down due to the bad publicity. Ganek was never indicted.

Ganek cannot sue anyone under the Fourth Amendment, and his case is dismissed. If you are not familiar with false arrest law, this case would be a no-brainer. That would be incorrect. This case is a brainer. The Court of Appeals (Raggi, Chin and Carney) says the false statement does not entitle Ganek to a false arrest lawsuit because the statement was not necessary to probable cause. The rule is that "probable cause to search exists where circumstances indicate a fair probability that contraband or evidence of a crime will be found in a particular place."

Even accepting that the FBI proceeded despite false information about Ganek, the Court says that while evidence that Ganek had knowingly traded on false information would enhance the probable cause, the absence of such knowledge would not preclude probable cause for the search, because "the warrant affidavit clearly alleges knowing insider trading by various LG employees, as well as Ganek's trading on some of the same inside information." "There was at least a fair probability to think that his office was among the LG premises where evidence of an insider trading scheme would be found."

What it all means for Ganek is that while he lost his business, he also cannot proceed with his case. The trial court denied the government's motion to dismiss on qualified immunity grounds, but since the Court of Appeals says there was probable cause to search Ganek's office, the case is closed and Ganek cannot recover any relief.

2d Circuit agrees to decide if courts must approve FLSA settlements under Rule 68

The Second Circuit Court of Appeals has agreed to decide whether the district court must independently review the fairness of a settlement reached under the Fair Labor Standards Act when the parties have resolved the case under Rule 68.

The case is Yu v. Hasaki Rest., decided on October 23. Under Cheeks v. Pancake House, the Second Circuit determined in 2015 that all FLSA settlements must be approved by the trial court. This holding departs from the usual practice under Title VII and other statutes, where parties settle cases on their own and the trial court is usually unaware of the terms of that settlement and simply discontinues the action. But under the FLSA, the Cheeks court held, we have to make sure the wage and hour plaintiff is properly compensated for his work, and the courts will intervene to ensure the settlement is fair, taking into account, among other things, the strength of the case and the plaintiff's potentially monetary entitlement.

But Cheeks does not resolve all questions under the FLSA. What about Rule 68 offers, where the defendant offers money and a judgment to plaintiff? These are different from the usual settlements, where the plaintiff gets money but no judgment. The catch under Rule 68 is that if plaintiff rejects the settlement but gets less money at trial, the plaintiff is penalized by having to pay defendants' post- Rule 68 costs. That means the plaintiff's lawyer does not recover attorneys' fees for all work expended post-Rule 68.

This case was resolved under Rule 68. District Judge Jesse Furman held that judicial review of an FLSA settlement is required before entry of a Rule 68 judgment. Other courts have held differently. So the trial court certified the case for immediate appeal to the Second Circuit under 28 USC 1292(b), which creates an exception to the rule that you can't appeal anything from the district court until the case is over. Section 1292(b) allows the Court of Appeals to conclusively resolve a disputed or contentious legal issue right away, which can "materially advance the ultimate termination of the litigation."

There was a glitch in this process, though. After the district court certifies the case under Section 1292(b), the plaintiff must ask the Court of Appeals to take up the appeal within 10 days of the district court's Section 1292(b) order. Plaintiff did not really do that. Instead, plaintiff filed a notice of appeal within 10 days. Plaintiff's petition to appeal to the Court of Appeals was filed outside the 10-day deadline. Since appellate deadlines are jurisdictional and do not allow for exceptions, this was a problem for plaintiff. The Second Circuit solves the problem by holding that the notice of appeal qualifies as a petition for Section 1292(b) review even without the actual petition being timely filed. That is because the district court's Section 1292(b) written order timely provided the Second Circuit with all the information in needed to determine whether the accept the appeal.

Having determined to entertain the Section1292(b) request for an interlocutory appeal, the Second Circuit (Newman, Walker and Pooler) grants the petition, noting that the Cheeks/Rule 68 dilemma has been festering in the district courts for a few years now and it's time to deal with that question head-on. This ruling does not answer that question. Rather, the parties will comply with the briefing schedule and argue the appeal sometime in 2018.

State Court of Appeals rejects expanded interpretation of New York City Human Rights Law

Every now and then the Second Circuit sends a case to the New York Court of Appeals to untangle a state law question. In this case, the Second Circuit asked the State's highest court to rule on whether the New York City Human Rights Law prohibits disciplining or firing an untreated alcoholic.

The case is Makinen v. City of New York, decided by the New York Court of Appeals on October 17. The two plaintiffs were New York City police officers. They were referred to the police department's internal counseling unit, which is like an EAP for police officers. Plaintiffs were not alcoholics, but the CSU determined that they "suffered from some sort of alcoholism." This lawsuit alleges that they suffered adverse employment actions because the City had wrongly believed they were untreated alcoholics. After the jury awarded them good money at trial, the City appealed, claiming the City Human Rights Law did not cover this form of discrimination. The Second Circuit referred the case to the New York Court of Appeals, which now holds that plaintiffs have no case because the City law does not explicitly prohibit this form of discrimination.

The Americans with Disabilities Act and the New York State Human Rights Law do prohibit discrimination where an employee is perceived to be an untreated alcoholic. The express terms of the City law do not prohibit that form of discrimination. The reason why the case got this far is that the City law was intended to provide for greater rights than federal and state law. On that basis, plaintiffs say, it is reasonable to interpret the City law to also prohibit discrimination against persons perceived as untreated alcoholics. Anyone familiar with the scope of the City law and its legislative history -- which demands that courts interpret it in the most plaintiff-friendly manner possible -- would understand where plaintiffs are coming from on this issue. Unfortunately for them, the State Court of Appeals does not see it that way, setting aside the pro-plaintiff statutory interpretation principles in favor of a plain reading of the statute, which takes priority over legislative intent under state law.

The State Court of Appeals concludes that "the [City law] does not consider a mistaken perception of alcoholism to be a disability covered by the [City law]." While the City law provides greater protections than federal and state law, and the legislative history and even portions of the statute tell courts to liberally construe the City law, the State Court of Appeals says "this is a rare case where through its express language, the City Council has mandated narrower coverage than" state or federal law.

This is not a unanimous decision. Five judges agreed with the City, and two judges dissent. Judge Garcia notes that courts must construe the City law "broadly in favor of discrimination plaintiffs whenever such a construction is reasonably possible." The State Court of Appeals said that in Albunio v. City of New York, 16 N.Y.3d 472 (2011). As Judge Garcia sees it, plaintiff's interpretation of the statute is "reasonably possible," concluding that legislative intent is the primary consideration in reviewing a statute's meaning. Under that interpretative model, plaintiffs are correct, Judge Garcia says, because the City law broadly protects against disability discrimination and the provision at issue in this case does not modify the broad definition of "disability" under the statute. This is a complex argument, but a reasonable one, the dissent says, even if the City also advances a reasonable argument. Under the statutory construction principles advanced by the City law, even if both sides advance a reasonable interpretation, the court must accept the plaintiff's interpretation. But, since the majority disagrees with Judge Garcia's analysis, the case returns to the Second Circuit, which must apply the majority's interpretation to the facts of the case. In all likelihood, the Second Circuit will vacate the jury award on the basis that the City law does not protect plaintiffs from this form of disability discrimination.   

Retaliation claim fails under Title VII

In this retaliation case under Title VII, we learn once again what constitutes an adverse action under the civil rights laws. We also learn once again what constitutes the "oppositional" activity necessary to claim retaliation. Adverse actions are an easy call if you are fired or denied a promotion. But what about lesser job actions that can aggrieve most employees? Oppositional activity under Title VII is an easy call if you explicitly complain about discrimination. But not every issue is an easy one, which is what the courts are for.

The case is Moy v. Perez, a summary order decided on October 11. If you complain about discrimination and something bad happens to you afterwards, that opens the door to a retaliation case. In this case, plaintiff was denied a promotion in March 2011. In 2010-11, he participated in a "climate survey." The decision does not explain what this climate survey was intended to accomplish, but my guess is that employees were asked to accurately describe the workplace environment. My guess is also that he did not claim in the climate survey that he had to endure a discriminatory work environment. The Court of Appeals (Raggi, Hall and Carney) says that "insofar as Moy contends that his participation in the 2010-2011 'climate survey' constituted a protected activity, his claim fails because no complaint allegations suggest that such activity entailed opposition to a practice prohibited by Title VII."

Plaintiff also loses the case because he did not suffer an adverse employment action. Employees do not refer to bad experiences at work as adverse employment actions. That's a phrase that only lawyers and courts use. In plain English, an adverse action in retaliation claims is some response by management that would prevent the average employee from complaining about discrimination again.

Moy alleges that (1) his supervisors “micromanaged” him and subjected his work to “heightened scrutiny,” (2) he received a less positive performance evaluation than he had in past years; and (3) his supervisors did not follow several DOL protocols in bestowing that evaluation. Such treatment, “considered both separately and in the aggregate,” would not dissuade a reasonable employee from “‘making or supporting a charge of discrimination.’”

Not only did plaintiff have a positive performance evaluation in spite of the hassles he went through, but the alleged close supervision constitutes "trivial harm" that would not prevent a reasonable employee from complaining about discrimination in the future.

Hostile work environment claim fails -- not enough offensive comments

Plaintiff in this case says she suffered a hostile work environment because of her disability. The Second Circuit says she has no case even though she claims coworkers "constantly" made derogatory comments about her mental health.

The case is Lawson v. Avis Budget Group, a summary order decided on October 11. Plaintiff apparently does not explicitly allege in her complaint that she suffered a hostile environment. In 2007, the Second Circuit said that a hostile work environment claim can be inferred from a “complaint [that] does not explicitly allege discrimination based on a hostile work environment” but nonetheless “gives the defendant fair notice of [the] claim for hostile work environment and the grounds upon which that claim rests." That case was Kassner v. 2nd Avenue Delicatessen, 496 F.3d 229 (2d Cir. 2007). The Court of Appeals (Raggi, Sack and Carney) wonders if the Supreme Court's plausibility pleading standard under Iqbal (2009) has repudiated the reasoning in Kassner. The Circuit does not resolve that issue, because it finds that plaintiff has not adduced enough evidence of a HWE in any event.

"Although Lawson argues that her coworkers “constantly” made derogatory comments about her mental health, Appellant’s Br. 13, this argument is belied by her deposition testimony, in which she stated that she could recall only one instance of such a remark. This isolated incident is insufficiently severe to permit a rational trier of fact to find a hostile work environment." What you say in the brief is one thing, but briefs are not evidence. While plaintiff points to her summary judgment affidavit stating that she endured insults related to her mental health on a "near daily" basis for almost a year, that affidavit -- which might normally be enough to repel summary judgment -- cannot work here because it contradicts her deposition testimony.

Lawson tries to get around this by arguing that her deposition testimony discusses the one occasion in which she heard subordinates discuss her medical condition, and her affidavit addresses many instances in which she was "insulted" by coworkers. That argument can work, but the Court of Appeals rejects it based on how it reads the deposition and affidavit.

At her deposition, Lawson testified that coworkers discussing her medical condition said “like, oh, she’s unstable, stuff like that,” and were “laughing at” and “mocking” her for being “cuckoo for Cocoa Puffs.” In her affidavit, Lawson similarly stated that coworkers “laugh[ed] at” her and called her, among other derogatory names, “cuckoo for co[]coa puffs.” This belies the distinction she attempts to draw between the deposition and affidavit and supports the district court’s identification of a clear contradiction as to the frequency of harassment. Because Lawson has not provided a plausible explanation for this contradiction, her affidavit cannot create a triable issue of fact as to the existence of a hostile work environment.

Speculation is not enough under Title VII

The Court of Appeals sees enough employment discrimination cases to know what cases will succeed and what cases will not. A common basis for the Court to reject a case is to find that plaintiff is urging the Court to infer discriminatory or retaliatory intent based on speculation. Speculation will not cut it.

The case is Meyer v. Shulkin, a summary order issued on October 11. Plaintiff was a psychiatrist for the New Jersey Veterans' Affairs Medical Center, where her performance reviews were mixed to negative, though there was scattered praise. When she sought to work with the Veterans' Affairs Medical Center in Syracuse, she was recommended for a vacant position and they sought her personnel file from the New Jersey VA. Once the Syracuse people reviewed the personnel file, they decided to retract the offer in light of the interpersonal and performance issues described in that file. Plaintiff brought this lawsuit, claiming the real reason was that the Syracuse people learned about the  EEO complaints that she had filed in her New Jersey position. Since the employment offer was retracted, it would seem at first glance that plaintiff has a retaliation lawsuit. She does not.

The reason she does not have a case is that plaintiff cannot prove the decisionmaker, Antinelli, even knew about the EEO complaints. Any such argument is speculation, especially since the EEO complaints are not in the personnel file. The Court reasons it out this way:

no reasonable jury could find for Meyer on this issue. No rational finder of fact could conclude that Antinelli even knew about Meyer’s EEO activity when he decided to terminate her offer. Meyer’s sole pieces of evidence to support this claim are that: (1) she believes that she saw references to her EEO activity when she reviewed her OPF in preparing for litigation, and (2) she speculates that the chief of human resources at the New Jersey VA Center informed Antinelli about her EEO activity. But she offers no evidence to back up either of these claims. Antinelli swore under penalty of perjury that he was not aware of Meyer’s EEO complaints. And the record contains a “true and correct copy” of Meyer’s entire OPF. Meyer does not point to a single page in this copy that references her EEO activity, and after a thorough review we could not find such a reference. In short, Meyer’s evidence consists solely of the “unsubstantiated speculation,” and “conjecture,” that we have held do not suffice to defeat a motion for summary judgment.

Plaintiff tries to get around this reasoning by arguing that Syracuse had already known about the reviews in New Jersey and that nothing in the personnel file could have been a surprise to them, so that the EEO charges must have been the real reason for the job revocation. But not only did the personnel files not include the EEO charges, but plaintiff did not tell Syracuse about the poor marks she received for her interpersonal skills.