Circuit revisits the right procedure for amending complaints in the face of Rule 12 motions

This case talks about the procedure guiding motions to dismiss a federal complain under Rule 12(b)(6). In particular, when can the plaintiff amend the complaint after the district court grants the motion to dismiss for failure to state a plausible claim? The Court of Appeals rejects the practice of at least one district court judge in holding that the time for plaintiff to file an amended complaint happens after the court rules on a motion to dismiss.

The case is Kopchik v. Town of East Fishkill, a summary order issued on December 26. I wrote about the ADEA and disability discrimination claims the other day. Not only did the Court of Appeals reinstate the plaintiff's claims on the merits, it throws in a few words about the district court's complaint-amendment procedures.

The district courts know that a motion to dismiss can actually result in two motions. If the first motion is granted because the plaintiff does not allege enough facts to state a claim, the plaintiff can amend the complaint once under rules. This means that, in opposing the motion to dismiss, the plaintiff might also cross-move to amend the complaint to fill in any deficiencies identified by defense counsel in filing the motion. Federal judges do not want two motions to dismiss in the same case, so they have procedures to prevent that. Some judges have the lawyers appear in court for a pre-motion conference to argue the merits of the motion before defense counsel even files it. During that colloquy, the judge might ask plaintiff's counsel if he wants to amend the complaint before the motion is file. Another approach, followed by the district court in this case, is to put the motion to dismiss on hold to see if plaintiff wants to file an amended complaint rather than oppose the motion; if plaintiff choose that route, the motion to dismiss is set aside, as we have a new complaint in the case, though defendant can move against the new complaint, as well. Under this procedure, if plaintiff chooses not to file an amended complaint in the face of defendant's motion, he forfeits the right to file an amended complaint.

The Court of Appeals notes that it has already rejected the latter procedure, citing Lorely Fin. No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 189-91 (2d Cir. 2015). In light of that case, the Court says, "there is no obligation on a plaintiff to expend time and resources to amend a complaint before knowing whether the court will find it insufficient, and if so, in what ways." The Court said in the Lorely case, "Without the benefit of a ruling, many a plaintiff will not see the necessity of amendment   or be in a position to weigh the practicality and possible means of curing specific deficiencies." In the end, the Court says, "It is inappropriate to deny a plaintiff the opportunity to replied after a defendant's motion to dismiss is granted, simply because the plaintiff decided not to replied before learning whether the court would find the complaint insufficient. The opportunity to amend the complaint is appropriately presented after the district court rules on a motion to dismiss."

Town board's fancy footwork in restructuring positions supports ADEA retaliation claim

Employers can get pretty creative when it comes to discriminating against people who file discrimination charges with the EEOC. The Court of Appeals recognizes that notion in reinstating an age discrimination lawsuit against a Duchess County municipality.

The case is Kopchik v. Town of East Fishkill, a summary order issued on December 26, a Christmas present for plaintiff, who claims he resigned his position under duress after the town eliminated a class of building and maintenance positions and then re-hired everyone but plaintiff, who instead was offered a position that he could not physically perform in light of his injuries arising from a job-related motor vehicle accident. This kind of fancy footwork could support plaintiff's retaliation claim, the Court of Appeals (Leval, Droney and Walker) says.

The Second Circuit raises a few interesting points. First, while the district court said there is no retaliation claim because the reorganization took place nine months after plaintiff filed the EEOC charge, the Court of Appeals notes there is no bright-line time-gap that will support or kill off a retaliation claim. Each case has to be evaluated in context. The Court says the nine-month gap may be explained by the amount of time it would take for the Town Board to undertake and formally adopt the restructuring. This reasoning reflects the reality of municipal decisionmaking, where nothing happens overnight. In addition, the Court of Appeals says, the retaliation could have stemmed from a prior EEOC charge that plaintiff filed in relation to earlier discrimination that plaintiff did not turn into a lawsuit. After the 90-day deadline for plaintiff to file a lawsuit in connection with that earlier charge came and went without a lawsuit, the Town Board waited another two months pass its job-restructuring resolution. While the trial court said in dismissing the case that it was not plausible for the Town Board to wait another two months to retaliate, the Court of Appeals says "it would be plausible for the Town to let some further time pass, so as to conceal its motivation." I have not previously seen this reasoning in a Second Circuit ruling. A smart plaintiff's lawyer will use that reasoning to explain away a lengthy time-gap between the protected activity and the retaliation. But bear in mind this is a summary order and not a precedential opinion, though summary orders may be cited if you've got nothing else.

In any event, we also have differential treatment between plaintiff and his non-disabled colleagues such that the time-gap does not alone revive plaintiff's lawsuit. Since other workers had their jobs eliminated but were brought back into town employment except for plaintiff, that also supports the minimal prima facie case.

These facts also revive plaintiff's disability discrimination claim, as management knew plaintiff was seriously injured and it futzed around with the positions to eliminate him from the town workforce, the Court of Appeals says. While the district court said that whether the town board's resolution eliminating the maintenance workers' positions "had a unique effect on plaintiff because of his disability is irrelevant to the causal connection" element of the prima facie case, the Second Circuit sees it differently. The resolution appeared to be designed to exclude plaintiff while bringing everyone else back to work. Under the minimal prima facie standard, plaintiffs states a plausible claim.

You have the right to own a chuka stick

A federal judge in New York has ruled that state law that prohibits ownership of nunchaku, or chuka sticks, violates the Second Amendment's right to bear arms.

The case is Maloney v. Singas, decided by Eastern District Judge Chen on December 14. This case has been kicking around for 15 years, having twice reached the Second Circuit, which first ruled against the plaintiff but later allowed the lawsuit to proceed after the Supreme Court in 2008 held the Second Amendment protects the individual right to gun ownership. Following this ruling, I can predict the case will reach the Second Circuit a third time.

The chuka stick is a martial arts instrument used recreationally in martial arts training, practice and performance. It is primarily used in self-defense as a weapon. At the evidentiary hearing on the statute's constitutionality, the court learned that nearly 65,000 chuka sticks were sold in the United States between 1995 and 2018, and that over a two-year period recently, Nassau County (the defendant in this case) prosecuted only five people for crimes involving the nunchaku.

The district court applies the constitutional analysis that the Supreme Court devised in the Heller case from 2008, which says the Second Amendment only protects weapons that are "in common use" and are "typically possessed by law-abiding citizens for lawful purposes." The court finds there is a rebuttable presumption that these weapons are protected under the Second Amendment. A lot of these things are floating around, and few people are arrested for using them criminally.

In reviewing the constitutionality of statutes under the Second Amendment, courts apply "intermediate scrutiny," which requires the government to advance a good reason for the restriction (as opposed to "strict scrutiny" which requires a compelling reason). Under this test, the restriction must be substantially related to an important governmental interest. While the court recognizes that protecting the community from crime is an important interest, plaintiff wins the case because the restriction against chuka sticks is not substantially related to that objective, as there is a dearth of nunchaku-related crime and the state's ban against these weapons is all-encompassing. "Defendant has offered virtually no evidence supporting a public safety rationale for a total ban (as opposed to lesser restrictions" on the possession of nunchaku in New York State.

Coerced speech doctrine applies in HIV/AIDS policy case

This long-running case has already been the U.S. Supreme Court and back. It involves a federal policy that says the government will only fund international HIV/AIDS programs if the recipients adopt policies against prostitution and sex trafficking. This may surprise you, but that policy requirement violates the First Amendment as a form of coerced speech.

The case is Alliance for Open Society v. United States Agency for International Development, issued on December 20. The first time this case reached the Second Circuit a few years ago, the Court held that the policy requirement violates the First Amendment rights of domestic organizations that receive this governmental funding. From what I recall, there was a good reason for this holding, though it is counter-intuitive (who would be in favor of sex trafficking?). The Supreme Court agreed with the Second Circuit's reasoning in this case.

The case returns to the Court of Appeals on a related issue: does the policy requirement violate the First Amendment when the domestic organization is closely affiliated with a foreign entity that follows a contrary policy? Over a dissent from Judge Straub, the Second Circuit (Parker and Pooler) says that it does. In that circumstance, the policy cannot apply to the foreign affiliates. Judge Parker explains why: the domestic organizations are affiliated with foreign entities who work on the HIV/AIDS programs. These entities try to maintain a unified global identity, with consistent branding. When this case reached the Supreme Court five years ago, the Court said that where an entity is clearly identified with another recipient of government funds and it rejects the government's message, its ability to speak is compromised when its affiliate is forced to speak to government's contrasting message. Consistency of message is key under this First Amendment doctrine. The Supreme Court's reasoning applies in this case. As Judge Parker writes:

These principles decide this appeal. Here, the affiliates are clearly identified with plaintiffs, and to require the affiliates to abide by the Policy Requirement would require the closely related—and often indistinguishable—plaintiffs to be seen as simultaneously asserting two conflicting messages. This is the “evident hypocrisy” to which the Chief Justice referred: when the Government requires contrasting, hypocritical messages between domestic and foreign affiliates by making one speak the Government’s message, this requirement infringes the speech of the domestic affiliate and, in so doing, violates the First Amendment. Indeed, the Government itself acknowledges that forced hypocrisy can impair an entity’s ability to speak: “It may be true that when two organizations are closely linked, in some circumstances the speech of one can be seen as the speech of both.”

Public university employee could be retaliated against over nepotism complaint

Another First Amendment retaliation case is dismissed as the Second Circuit finds that decisionmakers did not violate the First Amendment in "retaliating" against a public employee who complained about nepotism at the University of Connecticut.

The case is Weinstein v. University of Connecticut, a summary order issued on December 4. Public workers do have free speech rights, unlike private employees, whose workplaces are not regulated by the Constitution. You cannot suffer retaliation for speaking on a matter of public concern, generally defined as anything that would interest the public. But speech on private matters is not protected under the First Amendment.

Weinstein brought a complaint to the University's Director of Compliance concerning the Dean of the School Business. In filing a labor grievance with the University, Weinstein said the Dean engaged in nepotistic behavior. This led defendants to decline to reappoint plaintiff to his position.

Public concern speech is protected under the Constitution in that public management cannot retaliate against the employees for speaking out. Speech about nepotism might be of interest to the public, but plaintiff loses because, in context, it was private speech. At a minimum, the Court of of Appeals (Livingston, Lohier and Cortty [D.J.]), these defendants have qualified immunity because reasonable public administrators could have believed in 2011 that it was legal to retaliate against plaintiff.

At the time the University decided not to reappoint Weinstein (2011), our case law indicated that for speech to be on a matter of public concern it should have “a broader public purpose” and not be merely “calculated to redress personal grievances.” By contrast, Weinstein’s complaints were “personal in nature and generally related to [his] own situation,” and did not expose “pervasive or systemic misconduct by a public agency.” Weinstein made his first nepotism allegations while disputing changes being made to the University’s Innovation Accelerator Program, and subsequently when contesting the University’s handling of his reappointment. In both instances, his speech was focused on the private matter of his employment, which is not a matter of public concern.

Pro se school administrator wins breach of contract appeal

I am always impressed when a pro se litigant wins an appeal against a counseled defendant. In this case, a pro se school administrator wins her breach of contract appeal in the Second Circuit.

The case is Williams v. Buffalo Public Schools, a summary order issued on December 12. Williams sues for breach of contract. The school board terminated her employment, claiming she did not properly maintain her professional certifications, as required under the employment contract. But this case demonstrates how breach of contract cases are not so easy. Yes, Williams did not have the appropriate New York certification. But, she alleged in the complaint, she had professional certificates from Oklahoma and Florida, and at the time of her interview and hiring, she told defendants that she did not have a valid New York certification. During her first week, she applied for reciprocity from the State Education Department, and she later got a School District Leader Internship Certificate, suitable for a district-wide supervision position.

The Court of Appeals (Lynch, Hall and Carney) reinstates the lawsuit because, while the job posting says candidates must have a permanent teacher certificate and a New York school district administrator certificate, the contract is silent as to these certifications. The lawsuit plausibly alleges that Williams' alternative certifications satisfied the requirements in the contract. We can also plausibly infer that the district waived its right to enforce the contract's New York certification requirement, as plaintiff alleges the district knew she did not have that certification but they hired her anyway. That's waiver, my friends. Although the contract contains a non-waiver clause, state law does not preclude a waiver of contractual rights.

While the breach of contract claim is reinstated, the Court of Appeals affirms the dismissal of plaintiff's defamation claim, stemming from Board member Carl Paladino's statements that the district was "dizzy" for hiring plaintiff, whom he called a "hanger on." Paladino is a well-known loudmouth who ran for governor in 2010. These comments are not assertions of fact and therefore cannot be proven false. Hence, no defamation claim.

Retaliation case against City of Ithaca goes to trial a fourth time

This case has been around for quite some time. Plaintiff was a police officer for the City of Ithaca. The case was filed in 2010 and went to trial in 2012, when the jury awarded $2 million on the Title VII retaliation claim. After the trial court granted the City a new trial, the case went to trial again in 2015, when the jury awarded plaintiff $480,000 in damages, including $220,000 for pain and suffering relating to retaliatory "beat assignments." The trial court said the damages for the beat assignments were too high and the plaintiff could either take $50,000 on remittitur or have a new trial on damages on that claim (while also sustaining a separate damages award in the amount of $260,000 arising from a retaliatory notice of discipline). Most plaintiffs take the reduced amount, but this plaintiff opted for a new trial. So another trial on damages took place in 2016, and the jury awarded him less money than the remittitur, $20,000, on the beat assignments claim. The City appeals, and the Second Circuit finds the jury was not properly instructed on both retaliation claims, so the third verdict is now gone, as the Court of Appeals orders a fourth trial.

The case is Miller v. City of Ithaca, a summary order issued on December 18. When the liability portion of the case originally went to trial in 2012, the district court charged the jury that plaintiff can win the retaliation case if he shows his protected activity under Title VII was a motivating factor for the various adverse actions that plaintiff endured. The problem is that, since that verdict came down, the Supreme Court in University of Texas Medical Center v. Nassar, 570 U.S. 339 (2013), said the motivating factor standard does not govern Title VII retaliation cases and that, to win, the plaintiff has to show the retaliatory intent was the "but-for" cause of the retaliation. Motivating factor is a more plaintiff-friendly standard, as it does not have to be the factor that makes the difference in the personnel decision. Under the but-for test, the plaintiff has to show the retaliatory intent by itself made a difference, even if it was not the sole cause.

What it means for Miller is that, after all this time, this case proceeded in the district court under a liability standard that the Supreme Court has since repudiated. After three trials in this case, a fourth trial is now warranted, under the new jury charge. The beat assignment and notice of discipline claims will again go before a jury.

On this appeal, the City did try to prevent a fourth trial altogether, claiming that plaintiff did not actually suffer any adverse actions. The Second Circuit rejects that argument ruling that the beat assignments that the City ordered plaintiff to take on were sufficiently adverse because they usually went to junior officers and were seen as "punishment" beats when given to senior officers like plaintiff. It is that ruling -- that plaintiff did suffer an adverse action -- that allows this case to return to trial a fourth time, as there is still something worth suing for.

Some Rooker-Feldman for you

The Supreme Court has devised a set of rules that prevent unhappy state court parties to relitigate their cases in federal court. One of those rules is called Rooker-Feldman, named after two Supreme Court cases. Rooker-Feldman says you cannot file a case in federal court that, in essence, represents an appeal from a state court judgment. This allows the federal courts to respect state court judgments, no matter how silly they are. Rooker-Feldman is a complex area, however, as shown in this case.

The case is Cho v. City of New York, issued on December 11. This case has three plaintiffs, each of whom settled eviction proceedings that the City brought against them for allegedly misusing their property for criminal activity. The plaintiffs agreed to settle those eviction proceedings while maintaining their innocence; they claimed the settlements were coerced. After the settlements were "so ordered" by state judges, plaintiffs brought suit in federal court, alleging the City's lawyers used these eviction actions to compel property owners and leaseholders to enter into settlement agreements that require them to waive their constitutional rights.

Since there is a strong state court connection to this federal lawsuit, we've got a Rooker-Feldman problem here, do we not? The City argues that this case is really an end-run around the settlements that the state judges have already so-ordered. We solve Rooker-Feldman problems by applying a four-part test: (1) the federal-court plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by a state-court judgment; (3) the plaintiff must invite district court review and rejection of that judgment; and (4) the state-court judgment must have been rendered before the district court proceedings commenced." The second requirement seems to be the most important, says the Second Circuit (Lynch, Hall and Carney). Plaintiffs say the state courts that so-ordered the settlements merely ratified rather than produced their injuries, and that they can proceed with their lawsuit against the City of New York over its coercive settlement practices. This is the first time the Second Circuit tackles this issue.

The Court of Appeals agrees with plaintiffs, holding that, "where, as here, plaintiffs bring claims alleging harm flowing from wrongful conduct leading to settlement terms and do not argue that the state courts committed any error in so-ordering the parties’ agreements, the complaint attacks the conduct itself, and the claim does not function as a de facto appeal." As the Court concludes, "The instant case thus does not entail the evil Rooker-Feldman was designed to prevent. Plaintiffs are attempting to remedy an alleged injury caused when, prior to any judicial action, they were coerced to settle, not an injury that flows from a state-court judgment. By allowing an action such as this to go forward, we do not risk turning our federal district courts into quasi-appellate courts sitting in
review of state-court decisions."

Court of Appeals clarifies associational retaliation claims under Section 1983

It is illegal to retaliate against some because they are associating with someone else. But there are some major exceptions to this rule, as shown by a recent Second Circuit case against the County of Rensselaer.

The case is Gorman v. County of Rensselaer, issued on December 6. I represented the plaintiff in this appeal. The primary holding in this case, that qualified immunity shielded the defendants from any First Amendment liability arising from plaintiff's whistleblowing that a sergeant had invaded a civilian's privacy, is discussed here.

Gorman's sister was dating Sgt. Patricelli for years. They broke up because Gorman's brother told the sister that Patricelli was fooling around with someone else. That led Patricelli to threaten plaintiff and to otherwise retaliated against him. In addition to suing under the First Amendment, plaintiff sued under the Due Process Clause of the Fourteenth Amendment for associational discrimination. The Second Circuit had never really clarified what it takes to win a case like this under the Fourteenth Amendment, so it does so here.

But first, some untangling. In 1999, the Second Circuit resolved Adler v. Pataki, an associational discrimination claim brought under the First Amendment. In that case, the plaintiff's wife sued the State of New York, causing the state to retaliate against Adler, the husband. Gorman relied on Adler in proving his case, citing Adler's holding that simple vindictiveness against the plaintiff over his associational relationship with someone else is illegal. But the Second Circuit (Jacobs, Hall and Droney) distinguishes Adler.

Adler was not a Fourteenth Amendment claim: Adler concerned a familial association claim brought pursuant to the First Amendment, alleging that he was retaliated against because his wife filed an employment discrimination lawsuit against the State of New York. In that context, we ruled that “simple vindictiveness against the plaintiff on account of his wife’s lawsuit” was sufficient motive to sustain a familial association claim. Adler thus establishes that First Amendment associational rights protect against state intrusion into a family relationship intended to retaliate for a family member’s exercise of his or her First Amendment rights.

Since The Supreme Court has long held that "th[e] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property,” and Gorman cannot show that Patricelli deliberately interfered with the family relationship, he cannot proceed under the Fourteenth Amendment. While Gorman claimed that Patricelli tried to antagonize Gorman by telling the sister that she had to control her brother, "any impairment of the sibling relationship was at best the indirect and incidental result of Patricelli’s conduct."

Officer gets qualified immunity for tasing a deaf 15 year-old

A police officer who tased a deaf 12-year-old boy twice has been granted qualified immunity by the Second Circuit, which dismissed the civil rights case on the basis that a reasonable police officer would have believed the tasing was necessary to prevent the boy from acting out any further and hurting someone.

The case is Muchette v. Gionfriddo, issued on December 7. The boy was a student at the American School for the Deaf in Connecticut. He got into an argument with a teacher and ran out of the dorm and entered a nearby, fenced-off construction area, where he hit the teacher, Hammond, with a stick and picked up a large rock before sitting down with the rock, refusing to return to the school. After the police arrived, school officials -- 15 feet away from the boy -- told the boy through sign language to put down the rock. At the officer's behest, the school officials also "told" the boy he would be tased if he did not comply with that order. When the boy appeared to ignore the warning, he got tased. The officer then tased him again when they were unable to place him in handcuffs. The trial court denied the officer's qualified immunity motion, setting this case down for trial, but the officer took up an immediate appeal, and the Second Circuit (Pooler, Walker and Jacobs) reverses the trial court and the officer gets qualified immunity, which means the case is over.

Qualified immunity allows public defendants to avoid suit if their actions were objectively reasonable under the circumstances. Few Second Circuit cases address when the officer can tase someone, but the court applies the cases that deal with the general excessive use of force against noncompliant arrestees and other malcontents who just won't listen.

The district court summarized the evidence:

Officer Gionfriddo shot A.M. in the back with his Taser gun, and electroshock was administered for a period of 5 seconds. However, the two officers were unable to handcuff A.M. at that time, so Gionfriddo administered a second round of electroshock. After the second Taser deployment, the officers were able to handcuff A.M.

Paramedical personnel on the scene removed the Taser prongs and transported A.M. in an ambulance to a hospital. A physical evaluation at the hospital revealed a Taser mark on A.M.'s back, an abrasion to his chest, and a scratch to his right hand.

At deposition, Officer Gionfriddo admitted that A.M. did not make any quick, adverse moves before Gionfriddo fired the projectile prongs into A.M.'s back. Nor did A.M. threaten to throw any rocks in Gionfriddo's presence. Moreover, Gionfriddo testified that if A.M. were to have made any quick moves, Goinfriddo was comfortable that he could disarm him by deploying the Taser at that time.

Gionfriddo was on the scene for under three minutes before resorting to his Taser.

 The officer gets immunity because the school told him the child threw a chair at a staff member, hit Hammond with a stick and threw rocks at Hammond and other staffers. This led the officer to reasonably believe the student was a danger to others. The officer also had a reasonable basis to believe his warnings made their way to the student, as the school-people conveyed them through sign language. While there was some dispute whether the student got the message, the officer reasonably believed the teachers conveyed that message to him, as they were after all school officials who would have wanted to warn the student so that he would not suffer any tasing. As for the second tasing, the Court says plaintiff's lawyer did not make a serious argument on this point.

So what looks like a slam dunk for the student turns into qualified immunity for the officer. I listened to oral argument for this case, and the officer's lawyer opened by acknowledging that his case at first glance looked like an uphill battle, as we are after all talking about two tasings of a deaf child who was situated away from everyone else and did not appear to pose an immediate threat to anyone. But qualified immunity is unforgiving, and it allows police officers substantial leeway. Under qualified immunity, courts will give the police the benefit of the doubt in close cases.

No retaliation claim for officer who exposed sergeant's use of police database to spy on his ex-girlfriend's new boyfriend

The Court of Appeals has held that a corrections officer who exposed a sergeant's abuse of a restricted police database to spy on his ex-girlfriend's new boyfriend can be retaliated against for his speech act because the law was not clearly-established that this kind of whistleblowing is protected under the First Amendment.

The case is Gorman v. Rensselaer County, issued on December 6. I briefed and argued this appeal. Plaintiff worked at the County Jail. The sergeant was dating plaintiff's sister, but the relationship ended when Plaintiff's brother told sis that the sergeant was cheating on her. Meanwhile, the sergeant went to the eJustice database to check up on the new boyfriend's criminal history. The eJustice maneuver violated the new boyfriend's privacy and was against the law; it cannot be used for personal reasons, only legitimate law enforcement reasons. The sergeant was prosecuted for using this restricted database, and he pleaded guilty. Plaintiff, meanwhile, was retaliated against for blowing the whistle on the sergeant.

Under settled First Amendment law, public employees cannot be retaliated against for speaking on matters of public concern, to be determined by the content, form and context of the speech. Public concern speech relates to any matter of concern to the community. At the same time, public defendants can invoke qualified immunity, which disallows the lawsuit for damages if the case law was not clearly-established at the time. While exposure of official police misconduct is "generally of great consequence to the public," the Second Circuit has also stated that "no authority supports the argument that reporting an alleged crime always implicates a matter of public concern," such as in Nagle v. Marron (2d Cir. 2011), where a teacher did not engage in protected speech when she complained that someone forged her name on an official in-school report.

The Second Circuit (Jacobs and Hall) holds that Gorman's speech was not clearly protected under the First Amendment because "there is no indication that [the sergeant] or the other defendants were engaging in an ongoing pattern of misconduct that might concern the public," and the sergeant's "isolated use of a computer program for a private purpose implicated neither public safety nor the use of taxpayer's money." Moreover, the majority holds, "the context was a volatile, intra-family feud that embroiled [the sergeant] and the Gorman siblings," and plaintiff's speech "was calculated to redress Gorman's personal grievances" against the sergeant, had no "broader public purpose" and "was score-settling, and had small practical significance to the public."

Judge Droney dissents, noting that the misuse of the computer system had "practical significance to the general public" because it accesses sensitive information that may only be used for official business and not personal activities. Misuse of the system has "substantial consequences," as the sergeant was suspended for 10 months, charged with two felonies and pleaded guilty to a misdemeanor. He adds that "any public official would have known that [the sergeant's] misuse of [the system] for private reasons would be of substantial public concern." While the majority concluded that this arose from a personal dispute among officers, "we have held that where a personal interest primarily motivated the speech, such motivation does not, on its own, vitiate the status of the speech as one of public concern."

Trial court did not properly analyze whether surveillance at Staten Island courthouse violates Sixth Amendment

Twenty years ago, the City of New York settled a lawsuit claiming the Staten Island courthouse did have private spaces for lawyers to talk to their pre-arraignment clients. When the City opened a new courthouse in Staten Island, the Sixth Amendment concerns resurfaced because the City installed surveillance booths in the attorney-client areas to prevent security incidents. The Court of Appeals says this surveillance situation might violate the Sixth Amendment.

The case is Grubbs v. O'Neill, a summary order issued on December 3. The trial court said the new surveillance cameras do not violate the Sixth Amendment because the cameras use "masking" technology which blocks out the lawyer's face and does not record the attorney-client conversations.

Here is the legal standard governing cases like this:

To evaluate whether an institutional restriction on the Sixth Amendment rights of individuals in custody is valid, we employ a balancing test to determine if the restriction “unreasonably burden[s]” an individual in custody’s “opportunity to consult with his attorney and to prepare his defense.” Thus, it was the district court’s duty to balance the alleged burden the surveillance imposed on Plaintiffs-Appellants’ Sixth Amendment rights on the one hand with the City’s proffered institutional reasons for the surveillance on the other.

In rejecting the plaintiffs' claims, the district court got the analysis wrong because "it misunderstood important Sixth Amendment jurisprudence concerning conduct that chills a detainee’s communications with counsel. Specifically, the district court erroneously concluded that a detainee’s 'subjective impression or belief' that her conversation was being recorded and monitored did not constitute a cognizable burden on the Sixth Amendment. The district court did not appropriately consider the chilling effect that the cameras’ presence in the attorney–client booths could have on pre-arraignment detainees’ willingness to communicate candidly with their attorneys."

Since the trial court had to "weigh any chilling effect of the surveillance cameras against the City's security interests to determine whether the video surveillance with masking technology violates the Sixth Amendment," the case is sent back to the trial court to give this case a fresh look.

Second Circuit says jury can find police falsely arrested schoolteacher over her classroom supervision

The Court of Appeals has reinstated a false arrest and malicious prosecution lawsuit filed by an Orange County school teacher who was arrested for Endangering the Welfare of a Child arising from her classroom supervision of a three-year-old special needs child. The law firm of Bergstein & Ullrich, LLP, and Scott A. Korenbaum, Esq., represents the plaintiff.

The case is Pehush v. Ashworth, issued on December 4, 2018. Plaintiff taught at a private school, which called the police to report that plaintiff had allegedly abused the child by (1) placing the student in the corner of the classroom with a divider on the desk, preventing her seeing the other children; (2) allowing the child to each lunch 45 minutes to an hour after the other children ate lunch; (3) cancelling the child's session with a speech therapist; (4) disallowing the child from going to gym class; and (5) keeping the child in a wet diaper for an extended period of time. When Detective Ashworth arrived at the school, her investigation revealed the facts were less incriminating than the initial report. For example, Plaintiff isolated the child because she was acting out but still gave her 1:1 attention during the school day behind standard cardboard dividers to focus the child's attention; the student's diapers were changed throughout the day; and the child was never in distress. Ashworth did not speak with the teaching assistant who was present in the classroom (who would have exonerated Pehush), and her interview notes with plaintiff did not accurately reflects what plaintiff told her about the incident.

While the district court granted Ashworth qualified immunity on the basis that she had arguable probable cause to make the arrest, the Court of Appeals says the jury can rule in plaintiff's favor, and the case is remanded for trial. The Endangering statute is "unconscionably" broad, as one of the Second Circuit judges stated at oral argument. It says that a person violates the statute if she "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." If the defendant was "aware that the conduct may likely result in harm to the child," she can be arrested. The jury can find that Ashworth had no basis to find that plaintiff violated the statute.

The Circuit (Calabresi, Katzmann and Lohier) says that "there are reasons to doubt Ashworth's credibility" because her "report memorializing her interview with Pehush is at best inaccurate and at worst intentionally misleading" on various material facts, such as when the girl ate her lunch and why Pehush isolated her from the other students (she was consistently throwing things around). Also, while Ashworth arrested plaintiff based on secondhand reports from school administrators, the jury can find she ignored exculpatory evidence from a second classroom aide, Crosby. "Most importantly . . . Detective Ashworth testified that Crosby told her that Pehush worked with [E.H.] throughout the day, and Crosby's sworn statement that E.H. 'was kept in the room with only' Pehush when other students went to the gym supports that claim." Also, Crosby told Ashworth that Pehush worked one-on-one with the student all day. In addition, Ashworth did not "take . . . easy investigative steps" to further investigate the allegations, suggesting "that she had made up her mind based solely on . . . secondhand reports." Put another way, the jury can find that "no reasonable officer would think that E.H. was at risk of meaningful injury," as required under the Endangering statute.

Interesting side-note to this case. Plaintiff brought a state law false arrest claim against the Town of Wallkill. The district court dismissed that claim because it found that Ashworth had qualified immunity based on "arguable probable cause," a standard that allows many police officers off the hook. Plaintiff argued that the Town may still be held liable even if the arresting officer had qualified immunity, so long as no probable cause existed for the arrest. The Second Circuit has said that municipal liability cannot attach when the arresting officer has qualified immunity, but that case said that in the course of a brief discussion in Kass v. City of New York (2d Cir. 2017). The Second Circuit remands the state law claim to the district court, suggesting that the language in Kass might not be binding after all.

Court of Appeals recognizes arbitrators' authority to clarify their rulings

The Court of Appeals holds that an arbitration panel may amend its arbitration award if it was ambiguous. This holding represents an exception to the general rule that limits the power of arbitrators to alter their awards.

The case is General Re Life Corp. v. Lincoln National Life Insurance Co., issued on November 28. This case involves reinsurance, a topic that is foreign to many lawyers. Bottom line: after the arbitration panel issued its award, the panel (over a dissent) issued a clarification in light of ambiguities in the original arbitration ruling. Once an arbitration ruling issues, the parties may ask the district court to confirm it. The party that objected to the clarification told the district court that the clarified ruling exceeded the arbitrator's limited authority. The Second Circuit (Pooler, Wesley and Chin) says:

A district court’s authority to vacate an award “is strictly limited in order to facilitate the purpose underlying arbitration: to provide parties with efficient dispute resolution, thereby obviating the need for protracted litigation.”

We call this the functus officio doctrine, which says that "once arbitrators have fully exercised their authority to adjudicate the issues submitted to them, their authority over those questions is ended, and the arbitrators have no further authority, absent agreement by the parties, to redetermine those issues.” Are there any exceptions to this rule? The Third, Fifth, Sixth, Seventh, and Ninth Circuits in recognize "an exception to functus officio where an arbitral award 'fails to address a contingency that later arises or when the award is susceptible to more than one interpretation.” The Second Circuit adopts that exception as well, which "furthers the well‐settled rule in this Circuit that when asked to confirm an ambiguous award, the district court should instead remand to the arbitrators for clarification." So here is the rule:

An arbitrator does not become functus officio when it issues a clarification of an ambiguous final award as long as three conditions are satisfied: (1) the final award is ambiguous; (2) the clarification merely clarifies the award rather than substantively modifying it; and (3) the clarification comports with the parties’ intent as set forth in the agreement that gave rise to arbitration. This narrowly drawn rule ensures that in those circumstances where an arbitral body issues an ambiguous award and must issue a clarification, it will do so in keeping with the twin objectives of arbitration: “settling disputes efficiently and avoiding long and expensive litigation.”

What it means for the parties in this case is that the district court got it right when it said the arbitrators were allowed to issue the clarification. The district court ruing is affirmed. 

2d Circuit reinstates case after defendant tries to moot it with make-whole settlement offer

This case re-acquaints us with an issue the Supreme Court took up two years ago, when it held that a defendant cannot moot out a case by making a Rule 68 offer that gives the plaintiff everything it asks for. The Second Circuit broadly interprets that holding to mean that even non-Rule 68 maneuvers that give the plaintiff everything it wants cannot moot the case.

The case is Geismann v. ZocDoc, decided on November 27. Plaintiff is a doctor who sues this "patient matching service" who sent unsolicited faxes in violation of the the Telephone Consumer Protection Act, which authorizes damages for these annoying intrusions into our everyday lives.

This is the second time this case reaches the Second Circuit. During the first go-round, the Court of Appeals said that defendant could not make the case go away by making a Rule 68 Offer of Judgment that would have made the plaintiff whole. In making the Rule 68 offer, the defendant was trying to kill off a class action suit by knocking off the plaintiff such that the class action necessarily would go away. That holding in the first Geisman appeal invoked the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 136 S.Ct. 665 (2016), which said that an unaccepted Rule 68 offer does not render the action moot because "an unaccepted settlement offer -- like any unaccepted contract offer -- is a legal nullity, with no operative effect" on the individual plaintiff's claim.

In the first Geisman appeal, the Second Circuit reversed the district court, which had dismissed the case as moot, consistent with the Supreme Court's ruling in Campbell-Ewald. On remand, the defendant tried another tactic. This time, it asked the district court for permission to deposit $13,900.00 with the court under Rule 67 and that it would make an open-ended offer to plaintiff with no expiration date of a total of $20,000.00 and all available injunctive relief sought by plaintiff. The district court was OK with this, and once defendant made the deposit with the court, the trial judge granted defendant summary judgment on the case, reasoning that this settlement offer mooted out the case because it was not a Rule 68 Offer of Judgment which carries a short deadline for the plaintiff to accept or reject the offer.

The Second Circuit rejects that reasoning and the case is again reinstated. Judge Sack reasons that the Supreme Court's rationale in Campbell-Ewald applies in cases that do not involve Rule 68 offers. This follows the Seventh Circuit's reasoning in Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017). The Second Circuit states:

Like the Seventh Circuit, we see no material difference between a plaintiff rejecting a tender of payment (pursuant to Rule 67) and an offer of payment (pursuant to Rule 68). Indeed, other than their labels, once rejected, the two do not differ in any meaningful way: In each case, ʺall that exists is an unaccepted contract offer, and as the Supreme Court recognized, an unaccepted offer is not binding on the offeree.ʺ

Moreover, a key factor underlying the Supreme Courtʹs holding in Campbell‐Ewald was that the plaintiff ʺremained emptyhandedʺ once the defendantʹs Rule 68 settlement offer expired. 136 S. Ct. at 672. An unaccepted offer provides a plaintiff ʺno entitlement . . . to relief,ʺ so ʺthe parties remained adverse; both retained the same stake in the litigation they had at the outset.ʺ Id. at 670–71. In other words, ʺa lawsuit—or an individual claim—becomes moot when a plaintiff actually receives all of the relief he or she could receive on the claim through further litigation.ʺ

The deposit of funds in the district court registry, without more, leaves a plaintiff “emptyhanded” because the deposit alone does not provide relief to him or her. “The Rule 67 procedure provides a place of safekeeping for disputed funds pending the resolution of a legal dispute, but it cannot be used as a means of altering the contractual relationships and legal duties of the parties.” Indeed, on its face, Rule 67 “is just a procedural mechanism that allows a party to use the court as an escrow agent.” It does not itself determine who is entitled to the money.

The Court of Appeals adds that even if the district court first entered judgment against defendant by enjoining it from sending additional faxes and providing plaintiff with the $20,000, that would not have offered plaintiff complete relief, because plaintiff was looking for more than just injunctive relief and damages; it wanted "the additional reward that it hopes to earn by serving as the lead plaintiff for a class action." This means the trial court must resolve the pending motion for class certification before entering judgment and declaring the action moot based solely on relief provided to plaintiff on an individual basis. If the class certification motion is granted, the case may proceed. Otherwise, the Second Circuit says, the defendant has control over control of a putative class action at will.

Habeas is giveth and taketh away

A college student and his friend make plans to meet with an older guy to facilitate a drug deal. The idea was the student would sell the drugs to make money on his own. When they meet up on Long Island, the student, Keith, is left lying in the street with a bullet in his head. Somehow he survives. The older friend, Garner, is arrested for attempted murder and a jury finds him guilty. The assumption is that Garner needed money to pay the bills and for some reason decided to shoot Keith. A federal judge then grants Garner's habeas corpus petition on the basis that Garner was denied the effective assistance of counsel at his criminal trial. The Court of Appeals vacates the habeas order and reinstates the conviction.

The case is Garner v. Lee, decided on November 15. After Garner shot Keith, the police arrived and Keith, thinking he was going to die, told them all about the drug deal and that Garner pulled the trigger. The officer said Keith was "very coherent," even with a bullet in his head. Shortly after the police arrived, Keith's cell phone rang; it was Garner, who said he was on the parkway and then hung up. The police knew that Garner worked for an auto dealer, so they staked him out at work and pretended to be customers. When they saw Garner on the phone talking frantically and suggesting he was going to disappear, the police arrested him at work, which must have been quite a scene, I must say. The police found most of the money that Keith gave Garner for the drug deal, in Garner's glove compartment. Garner's cell phone records show that he made a series of phone calls from home shortly after Keith was shot.

The Eastern District of New York said Garner did not get a fair trial because his trial lawyer did not properly review and analyze the cell phone records, which Garner claims exonerates him because they would have supported his alibi that he was at home when Keith was shot. The Court of Appeals (Livingston, Raggi and Lohier) reverses the habeas order and reinstates the conviction.

The Constitution protects criminal defendants who are denied the effective assistance of counsel. But even constitutionally-defective representation does not get you a new trial if you are so guilty that any lawyerly deficiencies did not really make a difference. In this thorough ruling, the Second Circuit says the evidence against Garner was overwhelming and that Garner's testimony at trial was self-serving and uncorroborated. The Court adds that Garner's trial lawyer could not have done anything with the phone records that could have exonerated Garner at trial. So, legally, this crime that took place in 2002 is finally put to rest.

Any municipality can be sued for age discrimination under federal law

The Supreme Court has ruled that the all municipalities may be sued under the Age Discrimination in Employment Act, even if they employ fewer than 20 people, the numerical threshold for private employers.

The case is Mount Lemmon Fire District v. Guido, decided on November 6. Three anti-discrimination laws largely govern equal employment litigation: Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. We also got the Americans with Disabilities Act of 1990. The statutes are not co-terminus; they each have some minor distinctions, including how many employees an employer may have before someone can bring a discrimination lawsuit. You need 15 under Title VII and the ADA but 20 under the ADEA. Another distinction lies in whether that threshold applies across the board. It does  not.

Under Title VII, the 15-employee minimum applies to private and public defendants. The question in this case is whether the 20-employee minimum holds true under the ADEA. Under the ADEA,“The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” Justice Ginsburg employs some statutory construction here. The case turns on the phrase "also means." Parsing out the statute, the Court unanimously holds that the 20-employee rule does not apply to public employers, essentially holding municipalities to a higher standard of personnel management, as it is easier for workers to sue a town, village or county for age discrimination.

The statutory analysis seems clear, which explains the 8-0 decision. But management did tell the Court that the holding it would eventually reach would result in more litigation against municipalities. The Court rejected that argument:

The Fire District warns that applying the ADEA to small public entities risks curtailment of vital public services such as fire protection. Experience suggests otherwise. For 30 years, the Equal Employment Opportunity Commission has consistently interpreted the ADEA as we do today. And a majority of States forbid age discrimination by political subdivisions of any size; some 15 of these States subject private sector employers to age discrimination proscriptions only if they employ at least athreshold number of workers. No untoward service shrinkages have been documented.

2d Circuit clarifies test for federal malicious prosecution claims

The Court of Appeals has clarified the standard for malicious prosecution claims under Section 1983. The Court says the plaintiff cannot win unless he can show the underlying criminal case against him ended in a manner that affirmatively indicates his innocence. This standard is more strict than the test for state-law malicious prosecution claims.

The case is Lanning v. City of Glens Falls, decided on November 7. The case originates from a domestic dispute. Plaintiff was arrested for criminal contempt after his estranged wife falsely reported that he threatened to kill her. Following his indictment on various charges, the town court dismissed the charges during the jury trial, for reasons that are not clear to the Second Circuit.

You can bring a malicious prosecution claim under state or federal law. Plaintiffs usually like to bring these actions under federal law, which provides for more damages and attorneys' fees. State law claims are often brought in state courts that are not as familiar with civil rights as federal courts.

Under state law, the plaintiff must show the charges were dismissed in a manner that is not inconsistent with the plaintiff's innocence. That standard is not precise. The problem is that federal rulings have said that claims for malicious prosecution are "substantially the same" under state and federal law. That formulation, too, is not precise. As prior cases under federal law have not been clear on this issue, the Court of Appeals tries to straighten it all out.

Here is the bottom line. Bearing in mind Supreme Court authority that says common law principles (such as those under state law) are meant to guide rather than control Section 1983 claims, the Second Circuit does not formally adopt the more plaintiff-friendly standard for malicious prosecution claims. Instead the Court (Kearse, Cabranes and Lohier) says the plaintiff cannot win unless he shows the criminal proceeding affirmatively indicates the plaintiff's innocence. If the question of guilty or innocence remain unanswered, then the plaintiff has no federal malicious prosecution claim.

For plaintiff, this means the malicious prosecution cannot proceed any further. The charges against him were dismissed "in the interests of justice," a common formulation in the local courts. That means the plaintiff was able to walk away from criminal court a free man, but it does not tell us about his innocence. "Interests of justice" is too vague.

Qualified immunity strikes down another speech case

This case once again acquaints us with qualified immunity and how it can scuttle a civil rights lawsuit if the plaintiff's rights were violated in a way that was not readily apparent to the defendants at the time of the rights violation.

The case is Colvin v. Keen, decided on August 15, a case I overlooked when it first came down but discovered when I was researching qualified immunity in another case. Plaintiff worked for SUNY Farmingdale as an admissions counselor. She gave advice to a co-worker who was being arrested by campus police. The co-worker, Buch, was accused of trespassing on campus. This all happened after yoga class. Colvin told the police she was an attorney and she told Buch "to wait to say anything until we got an attorney and a union rep." Colvin also told the police she wanted to accompany Buch to the police station. Plaintiff's employment was then terminated.

Plaintiff says her First Amendment rights were violated because her speech to the police in connection with their interaction with Buch was protected. Generally, public employees cannot be fired in retaliation for protected speech. In the public employment context, protected speech addresses anything relating to a matter of public concern to the community. As Section 1983 lawyers know, public employees also have to show they spoke as a citizen and not as part of their job duties. That so-called Garcetti standard often kills off free speech cases, but plaintiff's case is dismissed for another reason: it was not clear at the time of plaintiff's termination that her speech was protected by the First Amendment.

The case law is not clear enough to help plaintiff. In other words, cases with a similar set of facts have not been resolved in the Second Circuit. Here is how the Court of Appeals sees it:

The precedents do not show a “clearly established” law favoring Colvin on this question. This court has found, on the one hand, that speech debating issues of discrimination, speech seeking relief from “pervasive or systemic misconduct” by public officials, and speech that is “part of an overall effort to correct allegedly unlawful practices or bring them to public attention” all go to matters of public concern. Golodner v. Berliner, 770 F.3d 196, 203 (2d Cir. 2014). By contrast, we have found speech that “concerns essentially personal grievances” does not qualify as speech on a matter of public concern. We have also reasoned that speech is not on a matter of public concern where it has “no practical significance to the general public.” Examples include speech alleging that a public school employee forged a signature on a teaching observation, survey questions about coworkers’ office morale, speech concerning the speaker’s own work assignments or salary, and speech accusing a supervisor of favoritism. (Citations omitted).

It is true that, under certain circumstances, we have found speech to be on a matter of public concern where it sought to “vindicate . . . constitutional rights . . . in the face of alleged police misconduct.” But in that case, Golodner, the speech related to polices and practices of police misconduct that "raised serious constitutional concerns." Unlike Golodner, the plaintiff in this case did not speak to police misconduct at all. She merely identified herself as a lawyer, "told her co-worker and the police officers that she wanted to get her co-worker an attorney and union representative, and advised her friend not to say anything until such representatives arrived. Colvin said nothing to indicate that Ms. Buch’s arrest was constitutionally improper." In other words, even if Golodner comes closest to plaintiff's case, it is not close enough, and defendants were not on notice they were violating plaintiff's rights when they fired her. Since it is otherwise legal to fire someone even for bad reasons so long they do not violate any specific constitutional or statutory command, the case is over.

$2.5 million pain and suffering award in discrimination case is reduced to $125,000

The funny thing about trials is that we tell the jury they are the ultimate factfinders and that the case is in their hands once the lawyers wrap up their summations and the judge charges with jury with legal instructions. But the verdict does not usually end the case. If the plaintiff wins -- particularly if the plaintiff wins a lot of money -- the defendant is allowed to continue fighting off the case, often challenging the damages award as excessive. The jury is unaware of these maneuverings. They have never heard the word "remittitur."

The case is Saber v. New York State Department Financial Services, 2018 WL 3491965 (S.D.N.Y. July 27, 2018). The plaintiff is an Iranian-born professional who suffered discrimination and retaliation based on his national origin. He worked for a state agency, which makes this case all the more unusual, since the state is not a mom-and-pop employer and trains its personnel not to discriminate. But for some people, all the training in the world is not going to make a difference. Maybe the jury in this case wanted to teach the state a lesson in awarding plaintiff $2.5 million dollars. But post-trial, the judge teaches us a lesson in remittur, and a dramatic one at that. The court reduces the pain and suffering award to $$125,000, as dramatic a reduction as you'll ever see.

The court notes that you can get emotional distress damages even without seeking medical treatment, and even if the distress does not manifest itself in physical symptoms. But courts also look to similar cases to see if the damages are too high. The court classifies this case as "garden variety" emotional distress (as opposed to significant or egregious) because the plaintiff did not seek medical attention. The court also bears in mind that the damages cap under Title VII for large employers is $300,000, so that's the ceiling against the State of New York. Under the cases, the upper limit for garden variety damages is $125,000, and that's what plaintiff gets in this case.

Plaintiff and his wife testified about his emotional distress. I seem to remember that, in the past, plaintiffs would get more money if other witnesses corroborate their pain and suffering, but this trend seems to have subsided. In this case, the trial court simply adopts the $125,000 (judge-made) cap on garden variety damages. Here is the testimony on this issue, which references the discriminatory comments directed toward plaintiff (who is from Iran) including "yellow cake" (a supervisor's comment about plaintiff hiding nuclear material) and waterboarding, which brings to mind Middle East torture:

At the trial, Plaintiff testified that he felt “extremely uncomfortable ... because people turn and stare at you” in response to Logan’s “yellow cake” comment and that he felt “very, very much offended,” “very angry,” and “also upset and concerned” in response to Gollop’s “waterboarding” comment. Plaintiff described feeling “that I am always the target ... And when you go to work, you absolutely do not know what can set off something very negative and uncomfortable,” leaving him feeling “very insecure about the future and very isolated, and looking over the shoulder constantly.” He also testified that he was sleeping less and at times felt humiliated and embarrassed. Plaintiff’s wife similarly testified that Plaintiff “has become more reserved and ... doesn't like to engage with people that much, and kind of upset” and that Plaintiff “cannot sleep good and cannot sleep long,” “is very distracted” and that he listens to music a lot “to get peace with music, like holding himself.” Plaintiff has not sought treatment for any physical or mental conditions associated with the injuries he alleges were attributable to the actions of DFS that form the basis of this lawsuit.

The court, in a second ruling, also awarded plaintiff front pay, or future lost income. The court decides not to reinstate plaintiff to his old position, as that will cause untold tension in the workplace. So the court instead compensates plaintiff for the lost wages. At 65 years old, the court says, plaintiff is unlikely to find a comparable position. So the court gives him five years' front pay. Front pay awards vary from case to case, as courts try to ensure the awards are not too speculative. Five years works in this case. Here is the analysis:

t age 65, Plaintiff is unlikely to obtain a position with another employer for the next five years with a comparable level of responsibility and compensation; a new employer is unlikely to hire and train Plaintiff for a position comparable to CRMS, given how close Plaintiff is to retirement. The position that DFS is offering Plaintiff also is not comparable to the CRMS position, as Plaintiff’s duties, level of responsibility, status, and working conditions would remain unchanged, albeit with an increased salary.

An award of front pay for a 5-year period is not unduly speculative. Plaintiff has worked at DFS or its predecessor since 2001. He rose through the ranks and has remained at DFS since then. Plaintiff states that he intends to retire at age 70, in five years, in order to maximize his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp., No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003) (awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).

Saber v. New York State Dep't of Fin. Servs., No. 15 CIV. 5944 (LGS), 2018 WL 3611718, at *5 (S.D.N.Y. July 27, 2018)

t age 65, Plaintiff is unlikely to obtain a position with another employer for the next five years with a comparable level of responsibility and compensation; a new employer is unlikely to hire and train Plaintiff for a position comparable to CRMS, given how close Plaintiff is to retirement. The position that DFS is offering Plaintiff also is not comparable to the CRMS position, as Plaintiff’s duties, level of responsibility, status, and working conditions would remain unchanged, albeit with an increased salary.

An award of front pay for a 5-year period is not unduly speculative. Plaintiff has worked at DFS or its predecessor since 2001. He rose through the ranks and has remained at DFS since then. Plaintiff states that he intends to retire at age 70, in five years, in order to maximize his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp., No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003) (awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).

Saber v. New York State Dep't of Fin. Servs., No. 15 CIV. 5944 (LGS), 2018 WL 3611718, at *5 (S.D.N.Y. July 27, 2018)

An award of front pay for a 5-year period is not unduly speculative. Plaintiff has worked at DFS or its predecessor since 2001. He rose through the ranks and has remained at DFS since then. Plaintiff states that he intends to retire at age 70, in five years, in order to maximize his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp., No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003) (awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).

Saber v. New York State Dep't of Fin. Servs., No. 15 CIV. 5944 (LGS), 2018 WL 3611718, at *5 (S.D.N.Y. July 27, 2018)

An award of front pay for a 5-year period is not unduly speculative. Plaintiff has worked at DFS or its predecessor since 2001. He rose through the ranks and has remained at DFS since then. Plaintiff states that he intends to retire at age 70, in five years, in order to maximize his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp., No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003) (awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).

Overall, plaintiff is awarded back pay of $121,231, discounted front pay of $185,926 and discounted pension loss of $168,167.

Court upholds discrimination verdict against state agency

A trial court has upheld a discrimination verdict in which an Iranian-born man was denied a promotion because of his national origin. But the court reduced the damages award from $2.5 million to $125,000, ruling that the plaintiff's damages were merely "garden-variety" and not substantial.

The case is Saber v. New York State Department of Financial Services, 2018 WL 3491695 (S.D.N.Y. July 27, 2018). Plaintiff was rejected for the CRMS position in 2012 and 2013. The guys chosen for the position were initially deemed unacceptable by the decisionmakers. But according to the district court, plaintiff is highly educated and experienced. In 2013, plaintiff filed an internal grievance with the company over his rate of pay. A few weeks later, he received his first formal counseling. He then filed an EEOC charge in November 2013. Shortly afterwards, he got a mixed performance review. So where was the discriminatory intent? In May 2014, when management said staff had to take a course in handling hazardous materials in the workplace, plaintiff's superior said "that the reason is that plaintiff is hiding yellow cake in his cubicle," a reference to the materials needed to make an atomic weapon. Then, in July 2014, he received a notice of discipline which proposed 20 days' suspension without pay, leading to an arbitration in which the lead of labor relations joked with plaintiff, "I didn't waterboard you, did I?" As plaintiff is Iranian, both comments reflect discriminatory intent.

The trial court finds the jury had an evidentiary basis to find discrimination and retaliation. But another issue surfaced in the post-trial motion. The judge asked the jury for an advisory verdict on when the agency first decided not to select plaintiff for the promotion. The court did this because it wanted guidance in case it had to decide the amount of front pay, which is left to the judge and not the jury. In answering Question 3, the jury answered "October 2011," which actually predates when defendant posted the position that was denied to plaintiff, in early 2012. The state argues this answer means the jury was confused, requiring a new trial.

The trial court disagrees, for three reasons. First, the verdict is actually consistent, because Question 3 was only an advisory verdict, which is non-binding, and the other evidence at trial supports the overall discrimination/retaliation verdict. Second, the jury is entitled to “an idiosyncratic position, provided the challenged verdict is based upon the evidence and the law.” The judge reasons that "the jury’s finding may be interpreted to mean that Plaintiff had no realistic chance of being hired as CRMS since the DFS’s inception," and the evidence at trial supports this view, as October 2011 coincides with the date of DFS’s creation, and, referencing the testimony of a non-party witness, "based on Ms. Atabaki and Plaintiff’s testimony, DFS, since its inception, had a strong focus in enforcing U.S. sanctions against Iran; Ms. Atabaki testified that since October 2011, she was demoted from being the head of her division." Third, "the jury had clear guidance on the verdict form (which is in the record as a court exhibit) that the discrimination claim was based on the failure to promote him to CRMS."The binding questions before the jury were clear and placed the ultimate issue at trial squarely before them.

Like all huge verdicts, the trial court cuts it down. This case is no different. Part II of this discussion will focus on remittitur and other damages-related issues.

$3 million EDNY police brutality verdict reduced to $255,000

For plaintiffs, the euphoria of winning at trial is soon tempered by the motion practice that follows. The defendant will ask the trial court to reduce the damages award and even throw out the verdict entirely. This means the case is not yet over, and the fight could make its way to the appellate court. While trial courts rarely throw out the verdict, they often reduce the damages, sometimes in dramatic fashion. That's what happened in this case.

The case is Jennings v. Yurkiw, 2018 WL 5630454, an Eastern District of New York case issued on October 31. This is a police brutality case. When plaintiff showed up at his son's mother's apartment to  drop off the boy, the police arrived after the mother said plaintiff had violated an order of protection. Plaintiff says, and the jury apparently agreed, that one officer, LaGrandier grabbed him by the vest while another officer, Yurkiw, punched him in the face for no reason, causing plaintiff to stumble to the ground and curl up like a baby as the officers beat the hell out of him. The police had to carry him out of the building. The trial court easily finds the jury had a basis to rule for plaintiff, as the case turned on credibility. Plaintiff says the police beat him up, and the police denied it. The jury credited plaintiff's testimony, and trial courts cannot second-guess credibility assessments on a post-trial motion. Damages are another story. Here is the damages evidence:

With respect to damages, it is uncontroverted that Plaintiff suffered a right eye hematoma, a bilateral nasal fracture, a deviated septum, and an inflamed ethmoid sinus, injuries that Dr. Hussein Matari recorded after reviewing Plaintiff’s CT scan at Woodhull Hospital on the day of Plaintiff’s arrest. Dr. Frank Flores, an emergency medicine physician at Rikers Island Correctional Center who examined Plaintiff two days later, on April 25, substantially confirmed these injuries. Dr. Flores noted that the area around Plaintiff’s eye was ecchymotic, or bruised, and had a hematoma, or “blood swelling.” Dr. Flores also observed Plaintiff’s nasal bone fracture. Mugshots of Plaintiff clearly depicting his right eye bruised and swollen shut were also received in evidence at trial. 

 

Plaintiff alleges that the long-term impact from these injuries is that his nose is permanently crooked and that he suffers from “definitely painful” headaches. Plaintiff did not offer any evidence of ongoing medical care to treat these conditions, and acknowledged on cross-examination that the last time he sought treatment with respect to his nose was around May 3, 2014, roughly ten days following his arrest. As for emotional distress, Plaintiff did not allege anything other than the distress he was in during and following the altercation, arising largely from being beaten in front of his son. Defendant Yurkiw confirmed that, at the time of the arrest, Plaintiff was actually in tears and asking Defendants, “Why are you doing this?” Plaintiff did not offer evidence of any psychological treatment.

The jury awarded plaintiff $500,000 for pain and suffering and $2.5 million in punitive damages: $1 million against Yurkiw and $750,000 each against LaGrandier and officer Solomito. The trial court reduces the pain and suffering to $115,000. The punitives are reduced as follows: $120,000 against Yurkiw and $10,000 each against the two other officers.

As for the compensatories, Magistrate Judge Gold says the $500,000 shocks the conscience, the legal standard under federal law, because the physical injuries "occupy a middle ground between non-permanent and permanent," including the crooked nose and frequent and painful headaches. Yet, the emotional damages are "garden variety," meaning there is no evidence of treatment with a mental health guy or medication for depression.Similar cases involving beatings and police abuse usually net around $100,000 in damages for physical injuries. As one case awarded $123,00 and another awarded $100,000, the judge in this case finds a middle number for this plaintiff: $115,000. 

What about the punitives? The court notes that juries have almost no guidance in awarding punitives and that judges have to regulate them to ensure we don't have runaway punitive damages awards. Reviewing similar cases that awarded punitives, Judge Gold slashes the award from $2.5 million to $140,000 between three defendants, with the most culpable officer assessed at $120,000.

Appellate courts mostly defer to the trial court's damages calculations in wage and hour cases

In this Fair Labor Standards Act case, the trial court ruled in plaintiffs' favor on liability but did not award a whole hell of a  lot of money in damages, about $25,000 for three plaintiffs. The trial court said defendants largely complied with the law and that the man who ran the restaurant, was the most credible witness at trial and even had genuine concern for the employees' well-being. The Second Circuit affirms.

The case is Gamero v. Koodo Sushi, Corp., a summary order issued on October 18. The district court did rule for plaintiffs while finding defendants credible on some important issues. Judge Failla wrote:

Plaintiffs all testified that they worked over 50 hours per week for most of their tenures at Koodo Sushi. They also claimed that Koo paid them fixed salaries—per shift for Gamero, and per week for Mastranzo and Sanchez—that fell below then-prevailing federal and state minimum wage statutes.

But in general, Plaintiffs' accounts of their hours and wages did not square with the payroll records Defendants submitted. Relying on those records and Koo's recollection of how she operated her restaurant, Defendants argued that Plaintiffs had overestimated—and in Gamero's case, substantially overestimated—their hours. Defendants also contended that Koo paid Plaintiffs by the hour, at rates that met or exceeded minimum wage, either in the first instance or once certain credits were deducted..

To be sure, the Court was troubled by many issues with Defendants' payroll records. Koo inconsistently tracked Plaintiffs' hours and wages. Some of her records are confusing; some are nearly illegible. But in the main, Defendants' account of Plaintiffs' hours and wages was more credible than the accounts Plaintiffs offered. Koo, in addition to evincing genuine concern for her employees' well-being, was by far the most credible witness at trial, and the Court largely accepted her testimony concerning the accuracy of the records she kept.

Appellate courts are not going to lightly question the trial court's damages calculations following a bench trial. Plaintiffs say the district court did not properly calculate damages because it did not calculate their "regular rate of pay," which is the hourly rate. While the trial court resolved this in terms of how much plaintiffs were owed per week, it appears the court did base its calculations on a per hour "regular rate" of pay. For the most part, the trial court credited one of the plaintiffs with a standard 50-hour work week. For another plaintiff, the trial court settled upon a "regular rate" of pay of $5.00 per hour (the minimum wage plus tips and meal credits), finding that he was paid $65.00 per week on average. On the basis of that weekly average, the court aggregated what this plaintiff was paid throughout his employment and calculated the difference between that figure and what the labor law required management to pay him within the time period covered by this lawsuit.

Plaintiffs also want liquidated damages under both state and federal labor law. The trial court did award plaintiff liquidated damages under state law. But the Court of Appeals recently held in another case that you cannot get duplicative liquidated damages under federal law (when the plaintiff already gets them under state law). That case is Rana v. Islam, 887 F.3d 118 (2d Cir. 2018).

Judge, can I go to Woodstock?

After the United States invaded Vietnam in the 1960s, many young Americans opposed the war on moral grounds and resisted the draft. The World War II generation was taken aback at this defiance, and the baby-boomers who were conscripted to fight in Vietnam puzzled their fathers and uncles who took it for granted that you must comply with these directives.

We used to call this the generation gap. Fathers could no longer recognize their sons. Did any decade start and end as differently as the 1960s? At the start of the decade, most young men looked clean-cut and there was little hint of the social revolution that would reach full flower only a few years later. There was no Beatles, Rolling Stones or Bob Dylan in 1960. Nor was there any Abbie Hoffman. By 1969, wide-scale social protest was a daily occurrence, and the police sometimes fought openly with the longhairs, i.e., outside the 1968 Democratic Convention in Chicago.

If you think the older generation was confused by the Vietnam protests, imagine what they thought of the counterculture. Music was no longer something you put on the hi-fi. Music by 1969 was loud, defiant, psychedelic and part of the lifestyle. It culminated in the Woodstock Music and Arts Fair, commonly known as Woodstock, held on Max Yasgur's farm in upstate New York. They say half-million hippies showed up for a three-day concert featuring everyone except the Beatles, Rolling Stones and Bob Dylan.

That brings us to Judge Curtin and Bruce Beyer. Judge John T. Curtin was a federal judge at the Buffalo courthouse. Born in 1921, Judge Curtin served in the Marines during World War II and was the United States Attorney for the Western District of New York from 1961 through 1967. President Johnson appointed him to the federal bench in 1967. While Judge Curtin was 48 years old in 1969, 48 back then was not 48 today. Forty-eight year-olds today go to rock concerts. Most 48 year-olds in 1969 did not subscribe to the counter-culture. (He died in 2017).

Bruce Beyer in 1969 symbolized America's youth. We don't think about Buffalo in recalling the tumult of the late 1960s, but there was an active anti-war community. Beyer was charged with assaulting a police officer. But this was your typical act of violence against law enforcement. Beyer was a principled anti-war protester who avoided the draft by seeking sanctuary at the Unitarian Universalist Church in Buffalo. He told his story last year:

On October 20, 1967 I stood on the steps of the Justice Department and returned my draft card to then US Attorney General Ramsey Clark. This act symbolized for me my opposition to the war and my desire to throw off what I came to describe as my “whites skin privileges.” By this time I came to realize that minorities and white working-class young people were serving while those of us from middle-class backgrounds were allowed an escape through a system of deferments. I would disavow my privileges. If it took going to jail as a way of serving my country then I was prepared to go.

Over the course of the next 10 months, I received three orders to report for induction. I publicly refused each time. Upon receipt of the third order, my friend Bruce Cline and I took symbolic sanctuary in my family church. After 10 days, 32 FBI agents and federal marshals, backed up by 100 Buffalo police officers, arrived at the church doors demanding my surrender. I refused.

What started out as a nonviolent protest against the war in Southeast Asia ended in a fist-swinging melee. I and eight of my friends were charged with assaulting federal officers in the process of carrying out their official duties. Of the nine of us arrested, four were veterans.

The government tried Beyer, who was among the "Buffalo Nine," for draft evasion and assaulting a police officer. According to Wikipedia, "The first federal trial began in February, 1969. Around 150 University of Buffalo students and faculty picketed the U.S. Courthouse, chanting 'Free the Nine -- The Trial's a Crime.' The defendants and their lawyers used the trial as an organizing tool. Beyer, Gross, and Kronberg and the other defendants informed the court that it was necessary to resist an 'immoral, illegal, racist, politically insane war on the Vietnamese people.' The jury was unable to reach a verdict on several of the defendants but Bruce Beyer was convicted and received a three-year sentence."

Following his conviction, Beyer was out on $5,000 bail pending appeal and needed permission to travel. In August 1969, every rock-and-roller in the Northeast had heard about the Woodstock concert. There were many rock festivals in the late 1960s and early 1970s, but there was something about Woodstock that made it a magnet for so many people. And why not? Jimi Hendrix, Janis Joplin, the Who and many other classic artists appeared. Bruce Beyer had to go. But he needed Judge Curtin's permission. The judge had probably heard of Woodstock, and he might have thought it was a frivolous endeavor. That did not prevent Beyer from asking the judge for permission to go. Here is the letter Beyer sent to the judge (click to enlarge):

This court order is for real. Beyer says that a paralegal friend liberated it from the court files. The judge's chambers date-stamped the letter. And Judge Curtin granted the application! Beyer was on his way to Woodstock. Nowadays, every federal court filing and order is electronically available to the world. Not so in 1969. The order turned up in a Facebook discussion among those who graduated from the antiwar Buffalo days. I write about it here because it must have been the only time in American history that a judge allowed a criminal defendant to leave the jurisdiction to attend a rock concert.

I caught up with Beyer on Facebook after I saw the Woodstock court order online. I asked if he made it to Woodstock. He did. This is what he wrote:

I arrived at Woodstock a day early with my friends Tara & Sam Abbate, ex-wife Heather and Buffalo Nine co-defendant Bruce Cline. Bruce was/is a country boy. He picked out a perfect spot on which to pitch our tents, on top of a small hill surrounded by pines. We collected a large quantity of firewood, so we had a fire going the entire time.We packed well, had plenty of food, remained dry except for our forays to the stage area. I remember Wavy Gravy and the Hog Farm feeding tons of people and the Hippie market up in the woods. It was the first time I met Abbie Hoffman and I hung out with/around him for a few hours. I remember waking up to Jimi Hendrix and the Star Spangled Banner and Richie Havens! The music, of course but it was all the people and everyone was so stoned and friendly. The helicopters overhead were disconcerting and I remember going around telling people that it was like Vietnam without the death and destruction. I miss Abbie most of all and I only got to spend time with him three times after that. We shared attorneys in Jerry Lefcourt & Michael Kennedy. It was the best of times. 

Little-known fact about Hendrix at Woodstock. He may have turned in the most memorable performance ("Star Spangled Banner"), but most of the crowd had gone home by then as Jimi took the stage on Monday morning, long past his scheduled time-slot. The three-day festival bled into a fourth day, and Hendrix plugged in at 9:00 in the morning. (Crosby, Stills, Nash & Young, who also wowed 'em at the festival, took the stage in the middle of the night, at 3:00 a.m.). After the concert, Beyer returned to Buffalo. Things did not get easier for him. His 2017 account tells us what happened:

In 1969, having been convicted for the assault charges, I was out on bail and awaiting trial for having refused induction. My opposition to the war grew more vocal as the body count on both sides rose to staggering proportions. I spoke out at every opportunity I was given. I gave a speech at University of Buffalo after which students destroyed the ROTC offices located in the Clarke Gym. I was charged with inciting a riot, arson, burglary, and conspiracy to incite a riot.

Now facing considerable jail time, I jumped bail and fled the United States. After six months of hiding in Canada, I eventually made my way to Sweden, where I was granted humanitarian asylum. Two years latter I married my Canadian girlfriend and we immigrated to Canada. I lived in Canada for almost five years and began the process of applying for Canadian citizenship.

Beyer was not the only one who went to Canada. But in 1977, as the country continued to move away from the 1960s, Beyer decided to return to the United States, risking jail time. He contacted Ramsay Clark, now a lawyer in private practice.

Friends in the movement for universal unconditional amnesty suggested I contact former US Attorney General Ramsey Clark. I knew that he had been to Ha Noi shortly after leaving office, I knew that he had spoken out strongly against continuation of the war both in private to President Johnson and vociferously upon returning to public life. I phoned him in New York City and he responded, “Bruce, I’m the one who got you into this, I owe you the chance to resolve it.”

Here is Beyer and Ramsey Clark:

The judge who allowed Beyer to go to Woodstock cut Beyer a break. Judge Curtin reduced Beyer's sentence from three years to 30 days. Since he had already served 19 days in 1970, he actually served 11 days upon return to the United States. In a 20-year retrospective published by the Buffalo News in 1988, Beyer said, "his lasting regret is that violence broke out at the church, and that he stood trial for assault instead of for defying the draft."