Sexual harassment case returns to the district court

Here's a li'l sexual harassment decision that you probably missed because it's a summary order that flies under the radar. The Court of Appeals says the plaintiff may have a case and sends it back to the district court for further review.

The case is McLeod v. Jewish Guild for the Blind, a summary order issued on July 19. A plaintiff makes out a sexual harassment case when a co-worker or supervisor creates a hostile work environment based on gender. A series of vulgar statements in a short period of time may satisfy that test. At a minimum, that evidence may entitle you to a trial, and then a jury decides if the work environment was offensive enough to violate Title VII.

The Court of Appeals (Hall, Lynch and Droney) says the district court did not view the summary judgment evidence in the light most favorable to the pro se plaintiff. The Court writes:

On appeal, the Plaintiff points to evidence in the record tending to show that Donald Dettmer repeatedly entered the men’s bathroom while he knew that she was in the room assisting a client, and urinated in her presence while she was unable to leave. The Plaintiff also points to evidence in the record tending to show that Dettmer repeatedly made comments about her attire suggesting that she was a sex worker. It appears the district court only considered two of these instances in granting summary judgment in favor of the Defendant. The district court characterized the Plaintiff’s case as “premised entirely on . . . five comments made by Dettmer over a period of approximately six years[.]”

The Second Circuit says other evidence was overlooked. Rather than make an initial determination whether plaintiff has a Title VII harassment case, the Court sends it back to the district court to resolve the motion again, in the hopes that the trial court is a little more careful this time around.

Cutting pro se discrimination plaintiffs a break

In this case, the Court of Appeals cuts the pro se discrimination litigants a break, holding they may proceed with their cases even if they do not comply with the technical requirements in filing the lawsuit.

The case is McLeod v. Jewish Guild for the Blind, decided on July 19. Using a form complaint provided by the federal court's pro se office, plaintiff checked off some but not all of the boxes to signify what claims she wanted to pursue. She checked off the Title VII box but not the ones for the New York City and New York State Human Rights Laws. The district court therefore disallowed her from proceeding with any claim other than Title VII. The Court of Appeals (Hall, Lynch and Droney) reverses.

The Second Circuit notes that it has traditionally cut pro se litigants a break when it comes to technical pleading deficiencies. Pro se litigants do not know the complexities associated with filing a lawsuit. We do not want form over substance for non-lawyers. The Court also notes that it has held in the past that even counseled litigants do not have to cite the correct law in pleading their cases and that it's the factual allegations that matter. The cite for that is Albert v. Caravello, 851 F.2d 561, 571 n.3 (2d Cir. 1988).

On these bases, the Court of Appeals reinstates plaintiff's City and State law claims. You may ask, what's the point? The point is that the City and State laws offer certain protections that Title VII does not, even if the plaintiff is claiming sex discrimination (as in this case) under all statutes. The City law is construed more liberally than Title VII, particularly with respect to hostile work environment claims. The State law provides a longer statute of limitations and allows you to sue individual defendants, unlike Title VII. If you practice in these areas, you know about these distinctions. But, the Court of Appeals says, pro se litigants are probably unaware of these distinctions, and they may inadvertently forfeit those rights in filling out the complaint forms provided by the courts.

2d Circuit upholds million dollar labor arbitration award

The Court of Appeals clarifies what it takes for an aggrieved party to challenge an labor arbitration award, ruling that the arbitration in this case was fair and the employee is entitled to keep his million dollar wrongful discharge award.

The case is Odeon Capital Group v. Ackerman, decided on July 21. Ackerman was a bond trader. When he was fired, Ackerman challenged his termination in arbitration, alleging breach of contract, disability discrimination and retaliation arising from an investigation into one of his bond trades. While it rejected the bulk of Ackerman's claims, an arbitration panel found in Ackerman's favor on the unpaid wages claim, awarding him $1.1 million.

The employer sought to vacate the arbitration in federal court. This is always an uphill battle. The purpose of arbitrations is the keep the case away from the courts. But there are exceptions: You can vacate the arbitration upon a finding of fraud. In this case, the employer said Ackerman perjured himself at the arbitration hearing in connection with one o' his bond trades. The Court of Appeals (Calabresi, Pooler and Wesley) says that fraud cannot predicate a federal challenge to an arbitration ruling unless the fraud was material to the arbitration award. The standard is that "the petitioner must demonstrate a nexus between the alleged fraud and the decision made by the arbitrators, although petitioner need not demonstrate that the arbitrators would have reached a different result."  The Court of Appeals cites cases from other circuits on this point, which means the Court is probably saying this for the first time in our circuit.

What does it all mean for Ackerman? He keeps the arbitration award. Even if he did perjure himself about a bond trade, the arbitrators granted him relief only on his unpaid wages/breach of contract claim, not the claim arising from the bond trade claim. Any possible fraud was immaterial to Ackerman's award.

Ackerman brings his own cross-appeal. The district court said he was not entitled to attorneys' fees expended in defending his successful arbitration award in federal court. The district court thought you only get fees in that circumstance if the party challenging the arbitration does so in bad faith. On that rationale, no fees for Ackerman, the district court said, because the employer's arbitration challenge was not a bad faith endeavor. But the Court of Appeals nixes that analysis, noting that New York Labor Law entitles you to attorneys' fees "in any action instituted in the courts upon a wage claim by an employee ... in which the employee prevails." That statute applies to "special proceedings" under the CPLR. Since applications to confirm, vacate or modify arbitration awards are special proceedings, Ackerman gets his attorneys' fees for the work his lawyer did in the district court, and presumably on appeal as well.

New trial in deadly excessive force case

This excessive force case tells us once again that the best way to appeal from an adverse jury verdict is to find a way to challenge the jury instructions. If something is wrong with the jury charge, then the trial may be fatally infected.

The case is Callahan v. County of Suffolk, decided on July 12, Callahan was shot during a confrontation with the police. What happened was the police were called to a single-family house; someone reported a situation involving a gun. Officer Wilson came upon a room with the door ajar. He saw that someone was inside the room. That person tried to shut the door. When the door partially shut, Wilson was holding his gun in his left hand. His hand holding the gun was on the other side of the door, inside the room. The officer was pinned on the door frame. The person inside the room made "some type of growl" that was "scary." Wilson thought he could be shot through the door or that the guy inside the room might take his gun. He saw a shadow coming around the door and "a hand thrusting toward him with an object." Wilson then fired his weapon, as he was unable to free himself. Those shots hit Callahan, who later died from the gunshot injuries. Callahan had no weapon.

Calllahan's family sued for wrongful death, but the jury found in favor of the police. This was a tough case for Callahan's estate. Callahan was unable to testify on his own behalf, and the officer was caught in a difficult position. It's easy to imagine a jury finding that the officer had no choice but to fire his gun in self-defense.

The problem was the jury charge. In 2013, the Second Circuit held in Rasamen v. Doe, 723 F.3d 333 (2d Cir. 2013), that the instruction in cases like this "must" convey "that the use of force highly likely to have deadly effects is unreasonable unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or to others." The charge in Callahan's case did use this language. But while Rasamen says the jury "must" be instructed that the use of deadly force is "unreasonable unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury," in this case the charge said the officer "may use deadly force ... if" the officer has the requisite probable cause." The instructions were further tainted because they suggested the jury could find the officer's shooting "complied with constitutional standards for reasons other than the fact that Wilson had probable cause to believe that Callahan posed a significant threat of death or serious injury to Wilson or others." But Rasanen makes clear that deadly force is unreasonable unless the officer had probable cause to think the individual posed a significant threat of death or serious physical injury."

These errors may seem subtle, but the Second Circuit (Droney and Parker) thinks they warrant a new trial. Judge Raggi dissents, finding that that the jury charge complied with the directive in Rasamen as well as recent Supreme Court rulings that provide additional guidance on what it takes to win a deadly excessive force case.

When can the jury know the plaintiff invoked the Fifth Amendment at deposition?

The jury trial is the name of the game. If you lose, you are entitled to file a notice of appeal, but few appeals from adverse jury verdicts are successful. The jury is allowed to view the facts any way it wants (within reason), and the judge enjoys broad discretion in making evidentiary rulings at trial. In this case, however, the appeal was successful. The Court of Appeals provides some guidance on when you can impeach the plaintiff's credibility at trial.

The case is Woods v. START Treatment, decided on July 19. The plaintiff sued her former employer for FMLA retaliation. The jury found for the employer. Plaintiff wins the appeal for two reasons: first, the trial court improperly charged the jury, telling them the plaintiff had to prove "but for" causation instead of "motivating factor." As I write in this blog post, this case represents the first time the Court of Appeals holds that the motivating factor test governs FMLA retaliation cases.

The other holding in this case is that the trial court got it wrong in allowing the employer's attorney to exploit how the plaintiff in pre-trial deposition invoked the Fifth Amendment on unrelated issues that could have affected her credibility.While evidentiary rulings are difficult to challenge on appeal, in this case, the trial court crossed the line, and the Second Circuit (Kearse, Hall and Chin) says the plaintiff gets a new trial because the evidentiary error denied plaintiff a fair trial.

In deposition, defense counsel asked plaintiff if she had ever been investigated by the City of New York. She took the fifth. She also took the fifth when counsel asked if she was accused of "some kind of immoral conduct" and whether she was accused of lying or fabricating events or submitting false documentation. She further took the fifth when asked if she was accused of misrepresenting the facts to the government. The jury knew about all of this, and defendants used plaintiff's refusal to self-incriminate against her at trial, attacking her credibility.

This was unduly prejudicial to plaintiff, the Court of Appeals held, for a number of reasons. "Most of the questions in Woods’s deposition were merely whether Woods had been accused of something. Even assuming her answers would have been 'yes,' accusations have little, if any, probative value because the innocent and guilty alike can be accused of wrongdoing. Without more, accusations do not 'impeach the integrity or impair the credibility of a witness.'' Second, plaintiff "suffered even harsher prejudice from the admission of an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of a conviction only when the crime is a felony or the court 'can readily determine that establishing the elements of the crime' required proving a 'dishonest act or false statement.' The district court here failed to consider whether the requirements of Rule 609(a) were met." Third, the jury may have thought plaintiff had something to hide when she took the fifth. The Court of Appeals explains:

the danger of unfair prejudice is high when a jury is told that a witness declined to answer a question by invoking the Fifth Amendment; the implication is, at best, that the witness refused to answer because she had something to hide. We tolerate some danger of prejudice from such inferences in civil cases, unless it substantially outweighs the probative value of those inferences. Here, the way in which Woods’s Fifth Amendment invocation was raised and later argued at closing elevated the prejudice to an intolerable level. Woods’s Fifth Amendment invocation was repeatedly emphasized—defense counsel raised it during Woods’s cross examination, the district court instructed the jury on it, and defense counsel argued it during his summation. Although defense counsel attempted to moderate this line of argument, see J. App’x 632 (“I am not hanging my hat on [the] Fifth Amendment invocation.”), he did so only after forcefully highlighting the inferences that the jury was permitted to draw. In arguing that the entire case hinged on Woods’s credibility, defense counsel told the jury “you are permitted in this case to infer that Ms. Woods was the subject of a government grand jury investigation, was accused of fraud, lying, fabricating events, and misrepresenting facts to the government and was then convicted of a crime.” Id. Defense counsel’s statement was consistent with the district court’s instruction, but the inferences that the jury was permitted to draw did not necessarily mean anything with respect to Woods’s credibility or character
for truthfulness.

2d Circuit rejects "but for"causation test for FMLA retaliation claims

The Court of Appeals holds for the first time that FMLA plaintiffs only have to show their family/medical leave was a motivating factor in their retaliatory dismissal. The Court rejects the more defendant-friendly "but for" causation test.

The case is Woods v. START Treatment, decided on July 19. (In addition to the causation standard, the Court also says plaintiff got an unfair trial because the jury knew she had taken the Fifth on certain deposition questions. I address that in a separate blog post). This case went to trial in the EDNY; the jury returned a verdict in favor of the employer. Plaintiff appealed, arguing that the trial was fatally tainted because the judge charged the jury under the "but for" test and not the "motivating factor" test. Finding that the jury was in fact wrongly charged and the bad charge could have made a difference at trial, the Court of Appeals (Hall, Kearse and Chin) remands the case for a new trial.

Woods worked for a drug rehabilitation facility. In summarizing the evidence at trial, the Second Circuit notes that management had repeatedly criticized plaintiff's job performance. However, plaintiff was fired shortly after taking FMLA leave. Disputes about what motivated plaintiff's termination entitled her to a jury trial.

The FMLA authorizes interference claims and retaliation claims. The interference claim arises when the employer prevents or impedes the employee's ability to exercise rights under FMLA. Retaliation claims "involve an employee actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action." The Court of Appeals holds that retaliation claims fall under 29 U.S.C. § 2615(a)(1), which provides: "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." (A related provision, § 2615(a)(2), provides: "It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter").

Under Section 2615(a)(1), employers cannot fire staff in retaliation for taking FMLA leave. If the case goes to trial, the jury must be charged that plaintiff need only show that retaliatory intent was a motivating factor in the decision to terminate. That means there may be other factors that motivated the termination, as well, but so long as there was some retaliatory intent in the equation, the plaintiff wins. Under the more restrictive "but for" test, which applies to claims brought under the Age Discrimination in Employment Act and retaliation claims under Title VII, retaliatory intent must have been the determining factor, that is, that intent (as opposed to some other motivation) made the difference. The Second Circuit has held the "motivating factor"/"but for" distinction generally cannot be resolved on a summary judgment motion. But it can make a difference at trial. The Court sums it up like this:

We now hold that FMLA retaliation claims like Woods’s, i.e. terminations for exercising FMLA rights by, for example, taking legitimate FMLA leave, are actionable under § 2615(a)(1). The plain language of § 2615(a)(1) supports this conclusion. Firing an employee for having exercised her rights under the FMLA is certainly “interfere[nce]” with or “restrain[t]” of those rights. Indeed, FMLA rights have two parts—the right to take leave and the right to reinstatement, so terminating an employee who has taken leave is itself an outright denial of FMLA rights.

The Department of Labor's regulations support this analysis. The Second Circuit defers to the DOL's regulations under Chevron deference, owing to the DOL's expertise in the area. While the Second Circuit hinted in Millea v. Metro-North Railroad, 658 F.3d 154 (2d Cir. 2011), that "but for" causation governs FMLA retaliation claims, the Court of Appeals now says the reasoning in Millea did not squarely address the issue in Woods' case.

Since the record contains evidence both that management took issue with plaintiff's job performance and that she was fired shortly after taking FMLA leave, the bad jury instruction could have made a difference at trial. 

Supreme Court strikes down same-sex Arkansas birth certificate rule

In its final days of the 2016-17 term, the Supreme Court issued a brief ruling that you may have overlooked. It holds that the Constitution prohibits the State of Arkansas from refusing to note that a newborn baby's parents are same-sex couples. This case is notable for Justice Gorsuch's dissenting opinion.

The case is Pavan v. Smith, decided on June 26. The female parents were married in Iowa and conceived children through an anonymous sperm donor. When the children were born, the state would only list the birth mother's name on the birth certificate. Yet, if heterosexual couples have children, both their names are on the birth certificate.

The Supreme Court holds that Arkansas's treatment of same-sex couples violates the Equal Protection Clause. Recall that a few years ago, the Court held in Obergefell v. Hodges that the Constitution makes it illegal for states to prohibit same-sex marriages. The Court now applies the reasoning in Obergefell to this case, reasoning that the state "denied married same-sex couples access to the 'constellation of benefits that the Stat[e] ha[s] linked to marriage.'" The Court adds, "As a result [of this unequal treatment], same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school. ... Obergefell proscribes such disparate treatment. As we explained there, a State may not 'exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.' Indeed, in listing those terms and conditions—the 'rights, benefits, and responsibilities' to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified 'birth and death certificates.'”

While the Court decided this case in a per curium opinion, a brief unsigned ruling, three Justices dissent: Gorsuch, Thomas and Alito. Justice Gorsuch writes the dissent, making it clear that his appointment to the Court will continue the conservatism of his predecessor, Justice Scalia. He writes:

Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Obergefell—like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders. In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the state supreme court agreed. And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.

Ministerial exception scuttles school principal's Title VII lawsuit

Not all employment discrimination can be challenged in court. If the plaintiff is a "minister" as defined by the Supreme Court, she cannot bring her lawsuit. The reason for this is a doctrine called the ministerial exception, endorsed by the Supreme Court in 2012. Last week, the Second Circuit applied that exception for the first time in holding that the principal of a private religious school cannot proceed with her gender discrimination lawsuit.

The case is Fratello v. Archdiocese, decided on July 14. I wrote an amicus brief in this case for the National Employment Lawyers Association. Fratello worked for St. Anthony's School in Nanuet, New York. After she was fired, plaintiff sued in the Southern District of New York, alleging gender discrimination. Citing the ministerial exception, the district court dismissed the case on summary judgment, and the Second Circuit (Sack, Lohier and Woods [D.J.]) affirms.

Judge Sack provides a comprehensive overview of the ministerial exception, drawing from Supreme Court and other authorities in noting that the values promoted by Title VII of the Civil Rights Act of 1964 (prohibiting gender and other forms of employment discrimination) clash with the Free Exercise and Establishment Clauses of the First Amendment, which protect the free exercise of religion and prohibit government regulation of religion. What it all means is that "ministers" as defined by the Supreme Court cannot bring these lawsuits because that would requires courts to tell religious institutions whom to employ as ministers. Some plaintiffs will end up on the losing end of these cases even if they are not formal "ministers." As the Supreme Court defined the term in Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012), you can be a "minister" if the totality of the circumstances shows you took on certain religious duties such that a lawsuit would have the effect of telling religious institutions who can spread the gospel. This doctrine is therefore not limited to actual ministers.

As principal, Fratello's formal title was not religious in nature. But that is not enough for her to get around the ministerial exception. Other factors help the defendants. The school's principal must be a practicing Catholic, committed to the teachings of the Church, and she must, among other things, exercise leadership to ensure a thriving Catholic school community. The Circuit court also says plaintiff understood that she would be perceived as a religious leader, and she performed important religious functions in that role. The Court says:

We think the record establishes beyond doubt that, as principal, Fratello “convey[ed]” the School's Roman Catholic “message and carr[ied] out its mission,” id., insofar as she: (1) consistently managed, evaluated, and worked closely with teachers to execute the School's religious education mission; (2) led daily prayers for students over the loudspeaker, and other prayers at various ceremonies for faculty and students; (3) supervised and approved the selection of hymns, decorations, and lay persons chosen to recite prayer at annual special Masses; (4) encouraged and supervised teachers' integration of Catholic saints and religious values in their lessons and classrooms; (5) kept families connected to their students' religious and spiritual development through the newsletter; and (6) delivered commencement speeches and yearbook messages that were religious in nature.Not only did Fratello perform all these functions, she was also evaluated on the quality of that performance.

In the end, no lawsuit for plaintiff. As the Second Circuit sees it, her job duties were too religious in nature to get around the ministerial exception. Although plaintiff was not a formal minister but instead a school principal, under Supreme Court authority, she was a "minister" under Hosanna-Tabor.

For appellate junkies only

I know there are appellate junkies out there. Some of you may even practice in the Court of Appeals. If you do, this case answers a question that few of us had even asked before.

The case is Hines v. City of Albany, decided on July 6. In this Section 1983 case, the plaintiff claimed the City had illegally seized and retained his SUV. The district court granted summary judgment for the plaintiff on the seizure claim. This is unusual. Normally, the defendants win summary judgment, not the plaintiff. So the City appealed from that ruling, and the Second Circuit affirmed. This all happened in 2011-2013. After plaintiff won the appeal, his attorneys moved for attorneys' fees arising from the appeal. These fees are recoverable. Defending a plaintiff's judgment in a Section 1983 case takes time and effort, and the fee-shifting statute governing these cases applies beyond the district court.

Here's the problem. After upholding summary judgment in favor of the plaintiff, the Court of Appeals said that each party would bear its own costs respect to the appeal. What does this mean? Plaintiff said that it only means that defendant was not obligated to pay the out-of-pocket costs associated with prosecuting the appeal, i.e., the cost of printing up the briefs and appendix, which can be sizable. Defendant said this means that it does not have to pay the attorneys' fees, which can be exponentially higher than the out-of-pocket costs. In this case, the appellate fees amounted to over $13,000.  The district court on remand denied plaintiff's application for those fees, concluding that the Court of Appeals wanted that result in stating that each side would bear its own costs on appeal.

The Court of Appeals (Lohier, Livingston and Rakoff [D.J.]) sides with plaintiff on this, and his lawyers get their attorneys' fees from that appeal, and presumably this appeal as well. Other Circuits have already reached this conclusion.

The Second Circuit runs through what it means to pay costs and how costs fall into a different category as attorneys' fees. But apart from the dry analysis drawing from Federal Rules, the Second Circuit also considers policy reasons, noting that the fee-shifting law allows civil rights plaintiffs to bring their cases even if they have no money, as their lawyers will have an economic incentive to pursue these claims in the knowledge that if they win, the defendant pays their fees. Without that incentive, few people would actually bring their civil rights claims to court. "Prevailing parties under Section 1988 [the fee-shifting] law are therefore entitled to recover a reasonable fee for preparing a defending a fee application. That includes attorneys' fees incurred as a result of appeals related to the defense of a fee award." While the Circuit notes that fees litigation should not turn into a second major litigation, it concludes that "plaintiffs were entitled to attorneys' fees on appeal under Section 1988 even though it was their third fee application."

Occupy Wall Street plaintiff loses excessive force case on qualified immunity grounds

This police misconduct reaches the Second Circuit for the second time. The first time around, the Court said the plaintiff had identified an issue of triable fact on the issue of whether the police officers had used excessive force in trying to arrest her after she was on the ground outside a Starbucks during an Occupy Wall Street demonstration. This time around, the plaintiff argues that the trial court on remand violated the Second Circuit's mandate in granting the officers' motion for qualified immunity.

The case is Brown v. City of New York, decided on July 5. My write-up on the first appeal is at this link. This is how I summarized the facts:

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

This episode was videotaped, and Judge Jacobs dissented, finding that no jury could rule in plaintiff's favor in light of her resistance to police authority. Anyway, the majority specifically remanded this case "for trial." But on remand, the trial court then entertained the officers' motion for summary judgment on qualified immunity.You did not think the City law department would just allow the case to go to trial without a fight, did you? The trial court granted the qualified immunity motion, finding that the officers' actions were objectively reasonable. The Second Circuit is OK with this, holding that trial courts have discretion to manage their dockets as they see fit, including resolving dispositive motions. While the trial court was not free to entertain another motion for summary judgment on whether the officers used excessive force in arresting plaintiff (as such a maneuver would violate the mandate), "it was not constrained from considering a second summary judgment motion raising the issue of whether the Section 1983 excessive force claims were defeated by qualified immunity, and issue that [the prior appeal) never decided."

Some other procedural issues also arise in this appeal. Plaintiff says defendants waived the qualified immunity defense because they barely mentioned it in their summary judgment motion prior to the last appeal and they did not raise it in the last appeal. That is not waiver, the Second Circuit (Jacobs, Droney and Stanceu [D.J.]) holds. Trial courts have discretion to resolve issues that might have been waived, and in this case, the defendants did raise the qualified immunity defense in their answer and they also raised it in their first summary judgment motion, even if they did so in passing. While the officers did not raise that issue in the first appeal, as every appellate practitioner knows, the Second Circuit can decide whatever issue it wants on appeal and even rule against a party on issues that the other side did not raise.

Finally, the district court did not get it wrong in granting the officers qualified immunity. Officers get the benefit of the doubt in close cases; that is how immunity works. Here, the plaintiff resisted orders to put her hands behind her back for the handcuffs, and they forced her body to ground. The facts set forth in this decision do not paint a pretty picture in describing how the officers were able to place her in cuffs for her initial offense, disorderly conduct. As the plaintiff had repeatedly refused orders to follow police instructions in order to place her in cuffs, "no precedential decision of the Supreme Court or this court 'clearly establishes' that the actions of [defendants], viewed in the circumstances in which they were taken, were in violation of the Fourth Amendment." That means the defendants get qualified immunity, and they are therefore not liable. Cases in which plaintiff relies in arguing otherwise involved excessive force that was truly excessive in relation to what the plaintiff had done in the presence of the police. 

Qualified immunity undercuts police taser case involving severely injured plaintiff

I hope you never get tased. I have handled a few taser cases, and the plaintiff always testifies that being tased hurts like living hell, like being electrocuted. The taser shuts down your ability to control your body. Excruciating pain is the controlling factor. Officers are trained to use this device. Sometimes, the use of a taser lands everyone in court.

The case is Soto v. Gaudett, decided on July 5. The police tased Soto while he was fleeing the police. Soto was driving at night without headlights and made a turn without signaling. When the police tried to stop him, Soto drove off at a high rate of speed. He then got out of the car and ran away. The police told him to stop; he would not. As he was running across the street, a police car hit him and he was thrown backwards but kept running. An officer than activated his taser, which hit Soto. In the end, Soto suffered serious injuries: a fractured skull and severe traumatic brain damage. He cannot speak, walk or act as a functional human being. He also requires around-the-clock care.

The injuries are dreadful, but does he have a case? The Court of Appeals (Kearse, Jacobs and Pooler) says Soto does not. The Court applies qualified immunity, which asks whether the police violated clearly-established law. This gives the police the benefit of the doubt; even if they technically violated the Constitution, if they did not violate clearly-established case law as handed down by the Supreme Court and the Second Circuit, then the police are immune from suit. The Second Circuit appears to have abandoned granting qualified immunity when the officer's actions are objectively reasonable as a matter of fact. It became clear to the Court that that basis for immunity found no support in Supreme Court authority, and that the only basis for immunity is whether the officers violated clearly-established law. In the end, this narrow basis for immunity may not really help plaintiffs, as the immunity inquiry is still fact-specific, and the Court now asks whether the facts as set forth by plaintiff are close enough to prior cases to deny the officers qualified immunity.

This all plays out in this case. The Circuit says there are no cases as of the date of this incident -- January 23, 2008 -- that established that "a suspect who was fleeing had a right not to be stopped by means of a taser." That means the police are immune from suit; they had no basis at the time to known that someone running from the police had the right not to be tased. You may argue that if the suspect is running away and is presumably not armed, that there is no reason to tase him. But the police do have the right to seize people who are fleeing a legitimate police pursuit. The law in this area was simply to fuzzy for the police to be on notice that they could be liable under the Constitution. This all means that Soto cannot sue these officers. (The decision goes on to state that the district court identified factual issues for trial against the other officers who also pursued Soto, so he may still proceed against those defendants).

Supreme Court OK's government money for church playground

The Supreme Court holds that the State of Missouri violated the Free Exercise Clause of the First Amendment in denying a church government money that would replace the gravel playground surface with a more child-friendly rubber surface. Justice Sotomayor's dissenting opinion says this is the first time the Supreme Court holds the Constitution requires the government to provide public funds directly to a church.

The case is Trinity Lutheran Church of Columbia v. Comer, decided on June 26. Missouri allocated money to public and private schools and other entities to help buy rubber playground surfaces made from recycled tires. But since Trinity is a church, it was not eligible for this money. Writing for the Court, Chief Justice Roberts says the Free Exercise Clause protects religious observers against unequal treatment. As the majority interprets Supreme Court authority on this issue, Roberts says "The Department's policy expressly discriminates against otherwise eligible recipients by disqualifying them form a public benefit solely because of their religious character. If the cases just described make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny."

Supreme Court authority can be interpreted any way the Justices want to interpret it. Since this case was not decided unanimously, two Justices see it differently, Justices Sotomayor and Ginsburg. Sotomayor opens her dissent like this:

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.

Citing established precedent, the dissent writes that "the government may not directly fund religious exercise," and that "nowhere is this rule more clearly implicated than when funds flow directly from the public treasury to a house of worship." Like this church. While the Court has sometimes found some direct government funding of religious institutions is consistent with the Establishment Clause, "the funding in those cases came with assurances that public funds would not be used for religious activity, despite the religious nature of the institution. The Church has not and cannot provide such assurances here." But this case involves a playground, not religious classes, right? Not so fast, Sotomayor writes. The plurality in a prior case implicitly agreed that public money cannot be used for religious activity, and that it would not "supplant non-program funds," that no money would "ever reach the coffers of religious schools" and that the program had adequate safeguards to police violations.

The Court resolved this case even though the State of Missouri had issued a directive in 2017 allowing religious organizations to compete for and receive government grants on the same terms as secular organizations. Would this not moot out the case? No, says the majority. "We have said that such voluntary cessation of a challenged practice does not moot a case unless 'subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' The Department has not carried the 'heavy burden' of making 'absolutely clear' that it could not revert to its policy of excluding religious organizations. The parties agree." Yet, the governor did issue a directive. How likely is it that the directive will be overturned? And though the parties agree this case is not moot, is that not a self-serving position so the parties may have this case resolved by the Supreme Court? As I see it, the Second Circuit employs a more stringent test governing voluntary mootness. If you care about this issue, see then-Judge Sotomayor's analysis in Lamar Advert. of Penn., LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004).
 

Circuit says plaintiff may have "serious medical condition" under FMLA

Under the Family and Medical Leave Act of 1993, certain employers (that employ more than 50 people) must allow people time off to care for "serious medical conditions." In this case, the Second Circuit explores what exactly constitutes a serious medical condition, vacating the grant of summary judgment and allowing the plaintiff to roll the dice before a jury.

The case is Pollard v. New York Methodist Hospital, decided on June 30. Plaintiff was a medical files clerk who stood on her feet for most of the day. Her doctor determined that the painful growth on plaintiff's foot might be precancerous and needed to be removed, and he set a surgery date of March 28, 2013. The doctor told plaintiff's employer that her foot situation was a "serious health condition" and that she needed medical leave from March 28 through April 18, 2013. The hospital objected and said FMLA leave cannot be granted unless the employee gives 30 days notice, which plaintiff did not. Plaintiff had the surgery as scheduled and was fired a few days later. Afterward, the doctor performed certain postsurgery tasks, like examining the wound and changing the dressing.

Rejecting the district court's analysis, the Second Circuit (Leval, Lohier and Koeltl [D.J.]), says plaintiff had a serious medical condition under the FMLA. Under the Act, “serious health condition” as including “an illness, injury, impairment, or physical or mental condition that involves ...  continuing treatment by a health care provider.” “Treatment” is defined as including “examinations to determine if a serious health condition exists and evaluations of the condition.” 29 C.F.R. § 825.113(c).

The district court said plaintiff did not have a serious health condition because her condition was eliminated by the surgery and that her two post-surgical follow-up visits, at which the doctor examined the wound, changed the dressing and removed the sutures, did not constitute treatment of the growth, but rather treatment of the wound created by the surgery. The Circuit disagrees.

We see no reason why post‐surgical change of dressing and removal of sutures does not qualify as part of the treatment of the condition that occasioned the surgery—at least if such postoperative treatment was medically predictable from the outset. The Hospital made no showing that such follow‐up visits for treatment of Pollard’s wound were not a routinely‐expected, reasonably‐required part of the surgical treatment of the growth. Accordingly, at least for purposes of the Hospital’s motion for summary judgment, Pollard satisfied 29 C.F.R. § 825.115(e)’s requirements of  “[c]onditions requiring multiple treatments,” and a ”period of absence to receive multiple treatments (including any period 1 of recovery therefrom) by a health care provider.” 29 C.F.R. § 825.115(e).

The Court of Appeals says in a footnote that "A different conclusion might conceivably follow if the surgery did not predictably call for follow-up, but instead, the need for subsequent visits arose from unexpected complications caused by the surgery." In this case, however, "This course of multiple treatments thus would qualify as a 'serious health condition' under the terms of the regulation if the condition 'would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment.' 29 C.F.R. § 825.115(e)(2)."

So what about the hospital's argument that plaintiff was fired because she did not give proper notice of her FMLA? That issue is remanded for the district court.

Court strikes down law barring sex offenders from the Internt

North Carolina had a law that said convicted sex offenders could not use any social media that the offender knows might be used by children. The Supreme Court strikes down this law as unconstitutional.

The case is Packingham v. North Carolina, decided on June 19. The defendant was convicted of having relations with a 13 year old when he was 21. Later on, he posted an unrelated message on Facebook about his positive experience in traffic court. That Facebook message broke the law because children use Facebook. Writing for the majority, Justice Kennedy as usual employs sweeping language about constitutional freedoms (if you want proof of this, Google "sweet mystery of life"  and "Justice Kennedy"). Here, the Court notes how the First Amendment protects speech in the public forum:

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.

The public forum cases were decided long before anyone had ever thought of the Internet and social media. But social media today is sort of like the Town Square of the olden days, except that on social media no one speaks to each other face to face. Justice Kennedy is trying to bring the Court into the modern age, writing, "While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the 'vast democratic forums of the Internet' in general, and social media in particular. Seven in ten American adults use at least one Internet social networking service. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. ... 

Social media offers 'relatively unlimited, low-cost capacity for communication of all kinds.' ... '[S]ocial media users employ these websites to engage in a wide array of protected First Amendment activity on topics 'as diverse as human thought.'”

Continuing with the sweeping language, Justice Kennedy writes:

The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it. And when awareness comes, they still may be unable to know or foresee where its changes lead. So too here. While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

The Court recognizes the dangers associated with sexual abuse of minors. The Court notes that danger in this ruling. But that does not outweigh the First Amendment violation posed by this law. The Court notes that "the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” 

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

Justice Alito concurs in the result of this case but he also warns against any ruling that would mean that the Internet is a true Public Square for First Amendment purposes. He writes (with Chief Justice Roberts and Justice Thomas signing along) as follows:

I am troubled by the Court’s loose rhetoric. After noting that “a street or a park is a quintessential forum for the exercise of First Amendment rights,” the Court states that “cyberspace” and “social media in particular” are now “the most important places (in a spatial sense) for the exchange of views.” The Court declines to explain what this means with respect to free speech law, and the Court holds no more than that the North Carolina law fails the test for content-neutral “time, place, and manner” restrictions. But if the entirety of the internet or even just “social media” sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders. May a State preclude an adult previously convicted of molesting children from visiting a dating site for teenagers? Or a site where minors communicate with each other about personal problems? The Court should be more attentive to the implications of its rhetoric for, contrary to the Court’s suggestion, there are important differences between cyberspace and the physical world.