Tuesday, February 28, 2017

Supreme Court vacates death sentence over racist expert testimony

We may have a conservative Supreme Court, but it will not put up with blatant acts of racial discrimination in criminal trials. In this case, the justices find that the lawyer of a man who senselessly murdered two people was deprived of effective legal assistance because his lawyer hired a quack expert who said during the death penalty phase of that case that defendant was more likely to commit violent crimes in the future because he is black.

The case is Buck v. Davis, decided by the short-staffed Supreme Court on February 22. A few years ago when I was fighting off a certiorari petition, I read a great book called Deciding to Decide, which talks about what cases the Supreme Court likes to take, and why it takes them. You may regard a book like this as a one-way ticket to snoozeville, but it was actually fascinating because the authors were able to speak to many Supreme Court justices and their clerks about the process. (Everyone was quoted with anonymity). One theme was the Court was reluctant to ever take ineffective assistance of counsel cases, for whatever reason.

The Court took this one, though. There is nothing sympathetic about the defendant in this case. Since  the Supreme Court rules in his favor, for now he does not get the death penalty. But he will most likely spend the rest of his life in jail, and it's probably not the country club atmosphere like Orange is the New Black, where inmates create meaningful friendships and plot against each other when the guards aren't looking.

Writing for a 6-2 majority, Chief Justice Roberts writes that the expert's testimony "appealed to a powerful racial stereotype -- that of black men as 'violence prone.'" This created a "perfect storm" as his testimony in the capital sentencing phase addressed the central issue: will the defendant wreak havoc on society again? And the witness also had impeccable credentials, having earned a doctorate and having testified in 70 capital murder cases. "Reasonable jurors might well have valued his opinion concerning the central question before them." This testimony did not have a de minimus effect on the jury, the Court says. In putting on a witness like this, Buck's lawyer was constitutionally ineffective, and Buck gets another chance to avoid the Chair.

Monday, February 27, 2017

Kicking most of the blacks off the potential jury did not give criminal defendant a viable habeas petition

A "jury of your peers" is one of those myths that non-lawyers will repeat from time to time when they talk about the possibility of a fair trial. But you really don't get a jury of your peers. You get 6 to 12 people who (1) don't know you or any of the witnesses; (2) swear under oath they can be fair and (3) could not find a way to avoid jury duty. The courts have other measure to keep things fair, including the rule that you cannot kick black citizens off the jury because of their race.

The case is Carmichael v. Chappius, decided on February 17. Carmichael was charged with certain drug crimes. At jury selection, his lawyer saw that something funny was going on. The prosecutor was kicking blacks off the jury. Not all of them, but most of them. Of the 210 people considered for jury duty, eight were black. The prosecutor removed six of them with peremptory challenges. "Eight black potential jurors accounted for 14 to 16 percent of the total number of individuals questioned during jury selection who were not removed for cause. Yet, the State used six of its twenty-one peremptory challenges on black venirepersons, or close to 29 percent of its available strikes, to remove 75 percent of them from the potential jury."

What does it all mean? The Supreme Court said in 1986 that you cannot kick potential black jurors off the jury. That was the Batson case. The party that objects to the racial cleansing has to make out a prima facie case of racial discrimination in asking the trial court to correct the problem. You make out a prima facie case "by offering a wide variety of evidence, so long as the sum of the proffered facts gives rise to an inference of discriminatory purpose." In other words, you've got to know it in your bones that the prosecutor is doing something wrong. All of this maneuvering is taking place, by the way, during jury selection, when there is no time to really prepare for this dispute and everyone has to think on their feet.

The federal trial court in Carmichael's habeas petition said the state court had violated the Constitution in not recognizing that his lawyer has identified a prima facie case of racial discrimination in jury selection. But citing the 1996 federal law that says federal judges have to defer to the constitutional judgment of state courts in habeas petitions (you know, states' rights and all that), the Court of Appeals (Winter, Cabranes and Restani [sitting by designation]) disagrees, holding that the state courts did not unreasonably apply settled constitutional standards in finding that Carmichael's lawyer did not identify a prima facie case. The Second Circuit concludes, "While statistical evidence may, in some circumstances, suffice to establish a prima facie case of discrimination during jury selection, the Appellate Division did not apply Batson and its progeny in an unreasonable manner when it concluded that, in the circumstances presented, the statistical evidence did not warrant an inference of discrimination." 

Friday, February 24, 2017

No wrongful discharge case for ex-officer involved in Louima incident

It is illegal in New York to fire someone because of his criminal record. There are some exceptions to that law, such as an embezzler cannot work at a bank and a child abuser cannot work in a day care center. But your average felon is usually protected under the law. But as this case shows, that law has some gaping holes in it.

The case is Schwartz v. Consolidated Edison, a First Department decision issued on February 7. Schwartz was involved in the infamous Abner Louima incident, where a New York City police officer was convicted of assaulting and sodomizing an arrestee. Schwartz was convicted of perjury. His assault-related convictions were vacated on appeal years ago. But he is still a convicted perjurer. Schwartz got a job at Con Ed, but the company terminated his employment. The First Department says the lawsuit does not allege that he was fired because of his perjury conviction "rather than due to the disruption of Con Ed's workplace and its employee and customers [sic] relations stemming from his perceived involvement in the underlying assault." Yet, here are the allegations in the complaint offered to support plaintiff's argument that he was in fact fired over this incident:

The allegations relevant to any discriminatory intent state only that shortly after he was hired, one Con Ed construction supervisor told plaintiff that people were "talking," that everyone "downstairs" knew who he was, and that his hiring "blew up the building." The complaint alleges, "Upon information and belief," without elaborating, that the supervisor was referring to plaintiff's perjury conviction (and vacated convictions), but the allegation is speculative and therefore insufficient.

In addition,

The complaint also alleges that Con Ed's director of employee and labor relations advised plaintiff that he was being terminated due to "potential disruption of business operations" and "damage to the Company's reputation" if he continued in its employ. There is no mention of his perjury conviction or any associated dishonesty, or any allegation that anyone mentioned the Louima case. When plaintiff himself commented that he was being terminated due to his "convictions," the director allegedly did not deny it, but under these circumstances, his silence alone does not suffice to show that plaintiff was terminated on account of his perjury conviction.
It sure sounds like Schwartz's conviction at least played a role in his termination, but the First Department does not see it that way.

Schwartz also argued that he was fired because of his "assault-related" conviction. Here is where the holes in the statute come in. Yes, plaintiff was convicted of that, but the convictions were vacated on appeal. Since the conviction is a nullity, he is merely claiming that he was fired over his arrest. But the law does not protect you from terminations based on your arrest, only your convictions.


Wednesday, February 22, 2017

Court of Appeals reinstates prisoners' rights case

The Court of Appeals has reinstated a 20-plaintiff lawsuit that alleges that pre-arraignment detainees at Brooklyn Central Booking endured appalling and disgusting conditions, including broken toilets, feces-encrusted cells, rodents, lack of access to sanitary and hygienic items like toilet paper and inadequate nutrition. Along the way, the Second Circuit applies a new standard governing the due process rights of pre-trial detainees and criticizes the trial court's failure to honor elementary summary judgment principles.

The case is Darnell v. City of New York, decided on February 21. I was one of the brief-writers on this appeal. You are probably eating lunch as you read this, so I will not nauseate you with the details about what these detainees went through. In particular, I will not tell you that some detainees saw rodents crawling in and out of the food boxes. Writing for the Second Circuit, Judge Koeltl summarizes the case this way:

The plaintiffs paint a picture of BCB that is alarming and appalling. The plaintiffs testified that they found the conditions at BCB degrading, humiliating, and emotionally scarring. One plaintiff testified: “I was not treated in a humane manner. I believe if I were a dog, and that if the A.S.P.C.A. was brought in and there was a dog in that cell, that the police officers, whoever were responsible for the treatment of that dog in that cell, that they would be brought up on charges.” Another plaintiff had an anxiety attack that required hospitalization, which he explained:
[S]tarted because of the deplorable conditions. I tried holding my bowel for about four hours. I wasn’t able to use the bathroom or any form of the bathroom and I found it very hard to breathe. My chest was very heavy and I tried to alert the guard. One guard just walked by and when they were letting in more people I told the guard I have to go to the hospital. I’m having chest pains and it was maybe 30 minutes after that they took me to the medical cell.
The due process clause prohibits inhumane jail conditions for pre-trial detainees, i.e., people who have not yet been convicted of anything. The plaintiffs have to show that jail officials were deliberately indifferent to the bad conditions. The Court of Appeals (Leval, Lohier and Koeltl [D.J.])
says the trial court got it wrong in finding the plaintiffs did not suffer unconstitutional conditions. In particular, the trial court said the plaintiffs did not suffer long enough because they were not locked up for more than 24 hours. The trial court also said the plaintiffs did not suffer long-term injuries. But the Court of Appeals says there is not hard and fast rule governing how long someone has to be exposed to this before they can bring a lawsuit. "The proper lens through which to analyze allegedly unconstitutional unsanitary conditions of confinement is with reference to their severity and duration, not the detainee's resulting injury." There is no "minimal level of grotesquerie required" before these cases become viable. While "the District court essentially ruled that no set of conditions, no matter how egregious, could state a due process violation if the conditions existed for no more than ten to twenty-four hours," that is not the law.

The next question is what is the required mental culpability for jail officials to hold them liable. When the trial court had this case, the long-standing view was that government officials had to subjectively intend to punish the detainees. That changed in 2015, when the Supreme Court ruled in Kingsley v. Henderickson, 135 S.Ct. 2466 (2015), that the subjective test is only relevant in Eighth Amendment cases brought by convicted felons who are challenging their punishment. The subjective test does not apply in Fourteenth Amendment cases filed by pre-trial detainees who are legally presumed to be as innocent as the winter-driven show on Christmas morning. The new standard is as follows:

to establish a claim for deliberate indifference to conditions of confinement under the Due Process Clause of the Fourteenth Amendment, the pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety. In other words, the “subjective prong” (or “mens rea prong”) of a deliberate indifference claim is defined
objectively.
This holding is a major development for prisoners' rights litigation. The subjective test that no longer applies for pre-trial detainees had regularly killed off many cases where the plaintiffs could not prove the guards intended to watch them suffer.

Finally, the Court of Appeals takes the trial judge to task for ignoring part of the record in finding the plaintiffs did not suffer badly enough. On a summary judgment motion, the judge has to assume the jury will believe the plaintiff's evidence and then decide if that evidence is enough to win. One example of the trial court's error involved a female plaintiff who said the facility "served 'wonderful cheese and bologna sandwiches.'" The trial court used this testimony to show the plaintiffs did not really suffer inadequate nutrition. But, the Court of Appeals says, this testimony was sarcastic, as she also testified that "she did not eat the sandwiches 'because the cheese was dry, the broad was dry, and she wouldn't feed it to her dog."

Tuesday, February 21, 2017

Court of Appeals grants habeas petition in child sex abuse case

Prison law libraries must be busy places. Inmates are looking to get out of jail, and a good habeas corpus petition can get you there. Most habeas petitions are denied. This one failed at the district court, but the Court of Appeals says the inmate makes a good point about the admissibility of his confession.

The case is Dearstyne v. Mazzuca, a summary order decided on February 13. Dearstyne was convicted of child sexual abuse and served more than 20 years in jail. He is now under parole supervision. That he is out of jail does not mean he cannot pursue his habeas petition.

Dearstyne evidently said something during police questioning that sealed his fate. He argues that the state court trial judge did not comply with clearly-established Supreme Court authority in resolving his claim at trial that his confession was not voluntary. In 1964, the Supreme Court said that "a defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined." The rule in that case, Jackson v. Denno, is that "a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given."

Prior to his criminal trial, Dearstyne asked the trial court to throw out his confession. The trial court held a hearing on the issue and denied the motion to suppress, finding that "a sharp question of fact has arisen." He left the issue of whether Dearstyne's confession was voluntary for the jury.

Will a jury fairly decide that a confession was coerced or involuntarily given? Would the jury care? Many people do not understand how an innocent man can confess to a horrible crime. True, convictions are overturned over involuntary confessions, but my guess is the average juror will think that no one in his right mind would admit to child sexual abuse. Which is why the trial courts have to decide the issue of voluntariness. In this case, the trial court got it wrong. The case is sent back to the state courts for a do-over on that issue.

Wednesday, February 15, 2017

Unwanted commercial faxes can violate the law

If you own a fax machine, you've received junk faxes. Did you know you can sue over unwanted junk faxes?

The case is Physicians Healthsource, Inc. v. Boehringer Pharmaceuticals, decided on February 3. The Junk Fax Protection Act of 2005 makes it illegal for anyone in the United States to send an unsolicited fax advertisement unless the fax has an opt-out notice. The penalty is $500 for each unwanted fax, with treble damages. In this class action, a pharmaceutical company sent out faxes for a female sexual enhancement drug that the FDA had not yet approved. The fax promoted a free "dinner meeting" and discussion about the product.

As it happened, since the FDA had not yet approved this drug, the pharmaceutical company was forbidden to promote it. The district court rejected the case because the fax was not "a pretext for pitching a ... product or service" and that "the hypothetical future economic benefit that the ... defendants might receive someday does not transform the fax into an advertisement." This is interesting reasoning. The company was forbidden to promote the product, since the FDA had not yet approved it, so the unwanted fax cannot economically benefit the company.

The Second Circuit is not buying it. The statute defines offending advertisements as those promoting "the commercial availability or quality of the firm's property, goods, or services." At this stage of the case (it was dismissed for failure to state a claim under Rule 12), "there is a plausible conclusion that the fax had the commercial purpose of promoting those products or services. Businesses are always eager to promote their wares and usually do not fund presentations for no business purpose. The defendant can rebut such an inference by showing that it did not or would not advertise its products or services at the seminar, but only after discovery." So long as the unsolicited fax has a commercial nexus to a firm's business, it will violate the statute unless the recipient can opt-out of its receipt. Judge Winter gives us an example of how the law works:

Two fanciful examples illustrate the distinction. If a complaint alleged that the Handy Widget Company funded a professorship at a local law school in the name of its deceased founder and faxed invitations on its letterhead to an inaugural lecture entitled “The Relevance of Greek Philosophers to Deconstructionism,” the complaint would not state a claim under the [Telephone Consumer Protection Act of 1991] because the Handy Widget Company is not in the business of philosophical musings. In contrast, if the Handy Widget Company faxed invitations to a free seminar on increasing widgets’ usefulness and productivity, a claim under the TCPA would be validly alleged. Of course, the Handy Widget Company could rebut at the summary judgment stage with evidence showing that it did not feature its products or services at the seminar.

Tuesday, February 14, 2017

Prisoner wins due process solitary confinement appeal

This inmate has been in the slammer for a long time. He sues the Department of Corrections over his 22 straight years of solitary confinement. The argument is that the state has denied him due process in failing to properly review his eligibility to return to general population. The Court of Appeals says a jury must decide if the state violated his due process rights.

The case is Proctor v. LeClaire, decided on January 24. The Court of Appeals (Wesley, Katzmann and Hall) recounts Proctor's prison record, which was positively awful in the early years but got a little better over time. You don't even want to know what this guy was up to in his early days in the 1980s and early 1990s. While his behavior "has remained positive" in recent years, there have been some isolated problems. The state keeps him solitary confinement, however, and it must follow certain procedures along the way if it wants to keep him htere. That process includes a report from the Facility Committee (at the jail) from the Central Office Committee in Albany, before the deputy commissioner makes the final decision.

The Second Circuit sets out some guidelines for cases like this. First, "the reviewing prison officials must actually evaluate whether the inmate's continued Ad Seg confinement is justified," and it cannot just go through the motions or phone it in. Second, reviewing officials must determine whether the justification for Ad Seg exists at the time of review or will exist in the future. Third, they must maintain institutional safety and security as their guiding principles in reviewing these cases. The extensive discussion guiding this process makes this case the leading Second Circuit opinion on the due process rights of prisoners who are locked away in solitary confinement.

The Court of Appeals says plaintiff may have a case. It appears the periodic review process results in a pre-ordained result: plaintiff remains in solitary. State witnesses said in deposition that under standard practice, inmates "never" get out of Ad Seg. As the Second Circuit sees it, the process involves hollow formalities, as one official says the prisoner's criminal history can support continued solitary confinement. As that would obviate the need to conduct periodic reviews, there is no real due process, which requires fair consideration of the prisoner's right to possibly return to general population, where he can make friends and walk among the living. Other witnesses suggested that no real standards guide these decisions. This excerpt from the decision sums it up:


One comes away from these depositions with nagging skepticism about whether there is anything Proctor could ever do to be released from Ad Seg. And indeed when Proctor’s counsel asked DeLutis that very question, DeLutis made clear that the answer is no, stating that there is nothing that Proctor can do that would convince DOCCS officials to release him. DeLutis affirmed that he disregards evidence of Proctor’s recent behavior when conducting section 301.4(d) reviews because that information has no effect given Proctor’s two‐decade‐old escape. officials are not just moving the goalposts on Ad Seg inmates like Proctor—there are no goalposts at all.

While the Court points out that "some of the evidence could lead a reasonable jury to conclude ... that DOCCS officials have analyzed Proctor's good behavior in their [periodic] reviews and found it to be outweighed by other facts, specifically Proctor's multiple escape attempts and violent acts toward other prisoners," the state can still win the case at trial. But there will in fact be a trial.

Friday, February 10, 2017

FMLA leave is required if sick grandparent raised you as a child

There are some cases where you think to yourself that, morally, one party must lose the case. This is probably one of them. The employer denied FMLA leave to an employee who needed to miss work to care for his seriously ill grandfather who had been his father figure. The district court rejected that claim, but the Court of Appeals brings it back.

The case is Coutard v.  Municipal Credit Union, decided on February 9. The Family and Medical Leave Act grants certain employees up to 12 weeks of unpaid leave to care for certain ill family members, including parents and even grandparents who stood in as in loco parentis. As the Court of Appeals notes,

The very reason that Congress in the FMLA defined "parent" and "son or daughter" to include, respectively, "an individual who stood in loco parentis to an employee when the employee" was "under 18 years of age," and "a child of a person standing in loco parentis," was to "reflect the reality that many children in the United States today do not live in traditional 'nuclear' families with their biological father and mother," and are increasingly raised by others including "their grandparents."
When plaintiff sought FMLA leave, he said it was for his grandfather, who was seriously ill. The employer argues that plaintiff was not entitled this leave because he did not tell management that his grandfather stood in as in loco parentis after his father died when plaintiff was a kid. The Court of Appeals runs through the many regulations governing the FMLA before deciding that this case has to go to trial. Judge Kearse reasons:

the obligation of an employee to give notice of his need for FMLA leave is not the obligation, imposed by the district court on Coutard, to provide the employer with all of the necessary details to permit a definitive determination of the FMLA's applicability at or before the time of the request. Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply.
In other words, if it thinks the FMLA may apply, the employer has to follow up with the employee to see if the employee in a case like this (involving a grandfather) is covered under the FMLA. Defendant did not so inquire about plaintiff's relationship with his grandfather, so it was not plaintiff's fault that he did not provide that information. "We conclude that the district court erred in ruling that Coutard was required, at the time of his request, to provide MCU with all of the information it needed to determine with certainty that his requested leave was within the FMLA."

Thursday, February 9, 2017

Younger than yesterday

The federal courts have to hear and decide cases over which they have jurisdiction, whether they like it or not. But there are exceptions to that rule, usually when there are countervailing state interests at stake. Even then, the federal court cannot just walk away from the case. It has to abstain from deciding it until the state courts can do their thing. One of the abstention doctrines is Younger abstention.

The case is Jones v. County of Westchester, a summary order decided on February 7. I briefed the appeal. Younger abstention is named after a Supreme Court case from many moons ago. Here is how Younger abstention works. If your lawsuit in federal court will interfere with on-going proceedings in state court or in the state administrative system, the federal court will hold off on resolving your case until the state tribunal can decide the issues first. By way of example, more than a decade ago, I represented a guy who was cited by his town for posting political signs on his property without a permit. While his case was pending in town court, I filed a federal lawsuit to enjoin enforcement of the town law, which I thought was unconstitutional. The federal judge said our case would interfere with the proceedings in town court (since a finding that the law was unconstitutional would affect the town court case), so she stayed the federal action until the town court proceeding was resolved.

In this case, plaintiff is a minor who is suing the Westchester County social services department over her poor treatment in foster care. Several times a year, the family court has permanency hearings to see how the child is doing. The county moved to stay the federal case under the Younger abstention doctrine on the theory that the girl's issues are being addressed in the permanency hearings. The trial court agreed, and the federal case was stayed.

The Court of Appeals (Hall, Droney and Nathan [D.J.]) reverses and puts the case back on the district court's docket. The case should not have been stayed because the minor plaintiff is not trying to enjoin any state proceedings. She is only suing for damages against the county for her poor treatment and care while in county custody. Her permanency hearings and the federal case can proceed simultaneously without one proceeding affecting the other. While the Supreme Court has not addressed this issue, the Second Circuit has long held that only federal claims for injunctive relief are candidates for Younger abstention, since the federal injunction will most likely actively interfere with the state proceeding. There is no such risk when the federal proceeding only seeks damages for past conduct that might have been the subject of prior state proceedings.

This appeal raised other issues besides Younger abstention. The parties also briefed whether the plaintiff stated a claim under the Constitution for her ill-treatment. This further briefing happened because the Court of Appeals can rule on issues other than those addressed by the district court. The Second Circuit noted this debate but declined to address it affirmatively, noting that it is not the "Oxford Union." Good one.

Wednesday, February 8, 2017

Some guidance on the interactive process under the Americans with Disabilities Act

The Americans with Disabilities Act requires employers to work interactively with disabled employees to see if a reasonable accommodation exists that will allow the worker to keep his job despite his disability. We call this the "interactive process." What if the employer does not engage in the interactive process? Is that by itself a basis to hold the employer liable?

The case is Sheng v. M&T Bank, decided on February 2. I wrote about this case in the context of the admissibility of offers to settle the case under Federal Rule of Evidence 408. The Court of Appeals (Winter, Kearse and Cabranes) granted plaintiff a new trial because the trial court had improperly allowed the jury to know that plaintiff had rejected an offer to return to work under certain conditions. That was good for plaintiff. But plaintiff also argued on appeal that the trial court got it wrong in refusing to charge the jury that the employer's failure to engage in the interactive process by itself is enough for plaintiff to win the case. The Court of Appeals disagrees.

The Court of Appeals had previously held in McBride v. BIC Consumer Products, 583 F.3d 92 (2d Cir. 2009), that "failure to engage in an interactive process does not form the basis of an ADA claim in the absence of evidence that accommodation was possible." In other words, if management blows of the interactive process and there was no way to reasonably accommodate the plaintiff in any event, then it's a harmless error. No harm, no foul. But the Second Circuit this time around clarifies that "an employer's failure to engage in a good faith interactive process can be introduced as evidence tending to show disability discrimination and that the employer has refused to make a reasonable accommodation." 

Tuesday, February 7, 2017

Equal Pay Act claim fails

We don't see too many Equal Pay Act claims in the Second Circuit. This case raises the issue of when plaintiff is able to compare herself to co-workers who earned more money. We see why these cases are so hard to win.

The case is Chiaramonte v. The Animal Medical Center, a summary order issued on January 26. Equal pay for equal work is a laudable concept, but it's hard to prove in court. Here is the legal standard:

“[T]o prove a violation of the EPA, a plaintiff must demonstrate that (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions.” Critical to an EPA claim is the equal work inquiry, which requires evidence “that the jobs compared are ‘substantially equal.’” “Substantially equal” does not mean “identical.” “To satisfy this standard, a plaintiff must establish that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications.” “[A] successful EPA claim depends on the comparison of actual job content; broad generalizations drawn from job titles, classifications, or divisions, and conclusory assertions of sex discrimination, cannot suffice.”
The Second Circuit (Livingston, Hall and Droney) says plaintiff cannot make out an EPA claim. While she says her better-paid male colleagues performed substantially similar work and had similar credentials and responsibilities, the Court of Appeals says that although "her position as Director of The President's Council and Rehabilitation Center shared some common characteristics,such as administrative responsibilities, with the positions of her male co-workers," there were "material differences in the congruity of job content."

Are any two jobs alike? Maybe so in some job contexts. The Court of Appeals finds that plaintiff took on different duties from her colleagues. Here is the reasoning:

Chiraramonte’s responsibilities as the Director of the President’s Council entailed primarily public-relations-type duties as well as primary care. ... Unlike the alleged comparators, Chiaramonte was not responsible for supervising interns or other veterinarians, and she contributed little if any scholarly research. Moreover, Chiaramonte carried a low patient load, seeing only one to three patients a day. Although she did perform some rehabilitation treatments at the Rehabilitation Center, she could go months without treating patients. Some of her better-paid male colleagues, on the other hand, treated up to 15 patients a day.

As aptly noted by the district court, Chiaramonte’s efforts to draw comparisons between her positions and those of her five co-workers “miss the mark because they essentially require the [c]ourt to embrace the principle that the work of all veterinarians is equivalent, thereby ignoring distinctions among the different specialties in veterinarian medicine.” That basis for demonstrating equal work has been expressly foreclosed by this Court.

Monday, February 6, 2017

Offers to settle the case cannot go before the jury

In this disability discrimination case, the plaintiff was unable to work because of complications with her pregnancy. Her employer, M&T Bank, wanted her to fly from the west coast to its Buffalo headquarters, but she was unable to do so on doctor's orders. Management denied her request to telecommute, and she was fired. The case went to trial, and the plaintiff lost. She gets a new trial, in part, because the trial court blew it on an evidentiary issue.

The case is Sheng v. M&T Bank Corporation, decided on February 2. (The case was argued in October 2015). After plaintiff told the bank that health reasons prevented her from flying, she retained a lawyer who tried to work things out with management. Counsel wrote the bank a letter that offered it a chance to "avoid a costly legal action that will result in substantial liability and adverse publicity for the Company and its executives." He wanted $200,000 for plaintiff. When the lawyers spoke on the phone, they agreed that Rule 408 of the Federal Rules of Evidence would govern their conversation. That rule says that offers of settlement are inadmissible at trial. The bank's lawyer suggested that plaintiff return to work and work remotely from Los Angeles for the remainder of her pregnancy. The bank's lawyer did not make an explicit statement that the reinstatement offer was conditioned upon the execution of a release of plaintiff's claims for monetary damages. The offer was rejected.

At trial, the bank wanted the bank's reinstatement offer admitted at trial to show that plaintiff had not mitigated her damages. The judge allowed it to go before the jury. This was error. In Pierce v. F.R. Tripler & Co., 955 F.2d 820 (2d Cir. 1992), the Court of Appeals said that "where a party is represented by counsel, threatens litigation and has initiated the first administrative steps in that litigation, any offer made between attorneys will be presumed to be an offer within the scope of Rule 408." That presumption can only be rebutted if "the party seeking admission of the offer ... demonstrates convincingly that the offer was not an attempt to compromise the claim."  Pierce is still good law, the Court of Appeals (Winter, Kearse and Cabranes) holds, which means plaintiff gets a new trial.

To the uninitiated, offers to settle would constitute great evidence that the person making the offer is throwing in the town and admits he's got a bad case. But the courts do not want these offers going before the jury because that would prevent anyone from discussing settlement. The court system would grind to a halt without settlement. There are too many lawsuits. Everyone is suing everybody else. Without settlements, the courthouse would be as high as the Empire State Building.

Wednesday, February 1, 2017

Go along to get along

Belligerency is no way to get along with people. In other words, sometimes it's good to go along to get along. In this First Amendment retaliation case, the plaintiff, who was dean at the University of Connecticut School of Business, loses his case because he could not get with the program.

The case is Weinstein v. University of Connecticut, a summary order decided on January 20. Many public employee free speech cases are dismissed before trial because the plaintiff did not actually engage in free speech on the job. Under the complicated rules set down by the Supreme Court, speech is protected under the First Amendment only when it's uttered as a citizen. This means that work-related speech is not protected under the Constitution and you can be fired for it. But in this case, Weinstein did engage in free speech when he complained about nepotism at the college. He claims the college declined to reappoint him as Director of the Innovation Accelerator program in retaliation for that speech. The Court of Appeals agrees.

Even if you did engage in free speech, to win the case, you have to show your employer fired/demoted/failed to reappoint you in retaliation for that speech. This is where it gets even trickier. Under what we call Mount Healthy balancing (named after a 1977 Supreme Court ruling), even if the plaintiff shows he was shafted because of his speech, the employer wins the case if it proves the employee would have been shafted even had he not uttered the speech. That's what happened here. The Court of Appeals (Raggi, Chin and Lohier) says that plaintiff had repeatedly questioned the college's proposed changes to the Innovative Accelerator program, even after management told him that his objections were counterproductive to the school's program goals.

In support of the college's position, when it notified plaintiff that he would not be reappointed, it advised him in writing that it had "significant doubts regarding your commitment or 'buy in' to the new program design" and that his view that the program was a 'sinking ship" was problematic. The Second Circuit "easily conclude[s] that the record evidence convincingly demonstrates a determinative link between" plaintiff's objections "and the challenged adverse action that would compel a jury to make a preponderance finding that Weinstein would not have been reappointed Director even without his nepotism complaint."