FLSA overtime case returns to the trial court to pick through factual disputes

In this overtime claim brought under the FLSA and New York law, an employee for Total Management Solutions who worked as a building manager at St. John's University and supervised cleaning and maintenance at dorms and sports facilities. Sometimes he helped in the cleaning and earned a salary of $80,000. Does he qualify for overtime pay? The district court said no, but the Court of Appeals says maybe.

The case is Paganas v. Total Management Solutions, LLC, a summary order issued on March 12. We consider the Executive Exemption to the overtime laws. This exemption says you don't get OT if you are fulfilling certain executive duties. Here is the test:

Under a four-factor test promulgated by the DOL, an "employee employed in a bona fide executive capacity" means any employee: (1) "[c]ompensated on a salary basis pursuant [above a prescribed level]"; (2) "[w]hose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof"; (3) "[w]ho customarily and regularly directs the work of two or more other employees"; and (4) "[w]ho has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight."

Weighing these factors, the Court (Calabresi, Chin and Carney) says the $80,000 salary and plaintiff's supervisory duties (over six cleaners) factor against overtime pay. But other factors make this a ballgame. We are not sure plaintiff's primary duties were management. While he did supervise buildings and six employees, he testified that 90 percent of his work was non-supervisory physical cleaning. While the district court said this testimony was not credited, that is not the trial court's role on a summary judgment motion; that's for the jury.

As for the fourth factor, plaintiff testified that he never recommended disciplinary action against porters, had no authority to hire and fire and never made recommendations to hire, promote or fire anyone. And even if he did make recommendations, there is no evidence that his recommendations were "given particular weight," as per FLSA regulations. "[A]n occasional suggestion with regard to the change in status of a co-worker' is not sufficient to show that an employee's recommendations . . . were given a particular weight." What it all means is this case returns to the district court to let the jury work it out.

How to win a Monell claim against a city in an excessive force claim

The plaintiff in this case won his excessive force claim against a City of Hartford Police Officer, winning a judgment in excess of $450,000. Defendant Allen appealed from that verdict and lost, as noted in my blog post from earlier this week. Outlaw cross-appealed from the trial court's ruling that he could not sue the City under Monell, the seminal Supreme Court case addressing municipal liability for civil rights violations. The Court of Appeals agrees that plaintiff cannot sue the city.

The case is Outlaw v. City of Hartford, decided on March 7. Under Section 1983, the federal civil rights law, you cannot simply sue a municipality because one of its police officers violated your rights. You have to show the officer violated your rights pursuant to a municipal custom and practice. This is hard to prove, as Supreme Court rulings over the years have tightened the legal standards such that many plaintiffs' lawyers don't bother with Monell claims and instead focus their efforts on the individual wrongdoing officer, who is usually indemnified by the municipality anyway, so what's the difference?

There are reasons to go after the City in a case like this, including the possibility that a jury may not want to rule against an officer who has a nice family and instead go after the big, bad faceless City. But this case tells us that you have to jump through some hoops to get there. Plaintiff tries to show that excessive force is a City policy by showing (1) a civilian review board report for 1994 (10 years before the police smacked plaintiff around) states the board was met with hostility and jeers by City officers and the police department did not cooperate with the board's investigations; (2) from 1998 through 2005, there were 66 excessive force lawsuits against the City and 87 other claims that were brought to the City's insurer; (3) from June 2003 through November 2004, Allen had filed 11 use-of-force reports in connection with his job duties; (4) the Cintron v. Vaughn class action that was filed in 1969 led to a consent decree in 1973 requiring more training for the officers; and (5) an expert opinion said the City was not systematically tracking the use of force by its officers.

This all sounds like the predicate for a good Monell claim. The Court of Appeals (Kearse, Livingston and Katzmann) disagrees. That class action did not focus on excessive force but racial discrimination. the lawsuits evidence does not work because there is no evidence as to the facts in those cases or how thoroughly the City investigated them. The simple fact that these claims were brought and some were settled does not permit an inference that the City was deliberately indifferent to in supervising the officers, and some of these cases did not involve claims of excessive force. The remaining evidence on plaintiff's Monell claims also fails. The Court concludes that plaintiff did not do enough to get the information he needed to win this claim:

The record before us does not show that Outlaw made requests for information as to the City's "investigations" of excessive-force complaints; but it does show that he had sought the foundational information as to the existence of such complaints. His effort to obtain that basic preliminary information was largely resisted by the City. For example, during the discovery period, Outlaw had requested production by the City of, inter alia, all excessive-force complaints against HPD officers from 1994 to 2004, and all of Allen's HPD disciplinary records (see Outlaw's document request to the City, Nos. 4, 6). Aside from identifying one complaint against Gordon and two against Allen, the City refused production of such complaints, objecting that the request was "overly broad, vague and unduly burdensome" and that as the request covered "a period of nine [sic] (9) [sic] years prior to the date of the [Outlaw] incident," it was "unlikely to lead to the discovery of admissible evidence" (City's Objection to Outlaw's document request No. 4). Moreover, in response to Outlaw's far more limited request for disciplinary records of just the officers other than Gordon and Allen who were "involved in the incident/arrest of the Plaintiff referenced in the Complaint," the City objected that the request was "overly broad, vague, and unduly burdensome" on the specious ground that the "interrogatory seeks information from the entire Harford [sic] Police Department based on the term `involved'" (City's objection to Outlaw's document request No. 3 (emphases added)). And the City declined to disclose Allen's disciplinary records on the ground, inter alia, that the request "constitutes an invasion of [Allen's] personal privacy." (City's Objection to Outlaw's document request No. 6.) Allen himself, in response to an interrogatory asking whether he had "ever been accused of violating anyone's civil rights" (Outlaw's Interrogatory No. 1 to Allen), similarly objected to the question as an invasion of his privacy.

. . .

However, the record does not show any determined effort by Outlaw to obtain the potentially probative information that defendants declined to provide.

Outlaw wins excessive force case against police officer

The jury awarded this plaintiff over $450,000 in damages for excessive force by a police officer. The officer appeals, claiming the jury's verdict rejecting the assault and battery claims means there could not have been excessive force, and that the verdict was therefore illegitimate. The Court of Appeals does not see it that way.

The case is Outlaw v. City of Hartford, decided on March 7. The Court of Appeals lays out the facts in detail. Outlaw was leaving a restaurant when someone called him a mother fucker, to which Outlaw responded in kind. The mofo guy was actually an undercover detective, Gordon, who jumped out of his car and attacked plaintiff, starting a fight in which other officers beat him up as he lay on the ground. The jury found that a different defendant, Allen, had used excessive force in violation of the federal and state constitutions, but that defendants did not commit assault and battery. The district court then issued a bench ruling on the qualified immunity defenses, determining after reaching specific facts that plaintiff's account of who was at fault for his injuries was more credible and that plaintiff did not strike Gordon and that Allen had beat him senseless.

Allen says on appeal that something is wrong with the verdict against him because the excessive force finding (favoring plaintiff) and the assault findings (favoring Allen) are inconsistent. The Court of Appeals (Kearse, Livingston and Katzmann) disagrees, once again reminding us that it is quite difficult to challenge factual findings and jury verdicts on appeal. The Court says in part that "the jury, in finding that Outlaw had not proven his claim against Allen for assault, could well have based that finding on an inference that a certain amount of force was reasonably used merely to effect Outlaw's arrest. There was no necessary inference that the jury found -- either also or instead -- that Allen was apprehensive for his own safety or anyone's  safety." In addition, the jury was instructed in a way that allowed it to find that some but not all of the force used by Allen was justified. And, while Allen wants the Second Circuit to grant him qualified immunity, he forgets that he had the burden of proof on that issue.

The jury's finding that Outlaw did not carry his burden of proving assault by a preponderance of the evidence thus did not mean that it found that Allen carried his own burden of establishing the factual predicates on which his claim of entitlement to qualified immunity is based, for example, that Outlaw was hitting Gordon, or attempting to hit Gordon, or acting threateningly or aggressively.

Relatedly, Allen did not ask the trial court to have the jury decide the factual issues relating to qualified immunity. The trial court resolved the factual issues on its own. That makes Allen's appellate challenge even more difficult.

In sum, we conclude that Allen's arguments that the jury necessarily made factual findings that (a) would entitle him to qualified immunity, and (b) were contrary to the posttrial factual findings made by the court, are meritless. The jury made no findings, express or implicit, as to whether Allen carried his burden of establishing any factual predicate for his defense. The court, having been asked by the parties to make findings of fact with respect to the qualified immunity defense, had the authority to make credibility assessments and draw such inferences as it believed appropriate. Its findings of fact, described in Part I.C. above, are amply supported by the trial record. We affirm so much of the judgment as awarded Outlaw damages against Allen.

Deliberate indifference case survives appeal

A lawyer brought this case after her dogs died in a house fire. She claims the firemen would not allow her into the apartment to retrieve them. That's the basis for her Fourth Amendment seizure claim. Plaintiff also alleges the defendants were deliberately indifferent to her serious medical condition. The dog seizure claim loses. The medical claim survives appeal.

The case is Bruno v. City of Schenectady, a summary order issued on March 16. According to the district court opinion, plaintiff returned home after a medical procedure to find her apartment on fire. She wanted to enter the building to rescue her dogs but the fire department said they were dead. The Court of Appeals (Katzmann, Kearse and Oetken [D.J.]) says it was "eminently reasonable for fire officials to temporarily prevent Bruno from entering her home while the fire on the premises was still under investigation." This is because the Supreme Court has said that "fire officials are charged not only with extinguishing fires, but with finding their causes and preserving evidence."

But the medical indifference claim is reinstated despite the district court's grant of summary judgment. Plaintiff claims the police officers' actions at the fire scene aggravated her prior medical condition (traumatic brain injury), to which the officers were deliberately indifferent, placing her in a "condition of urgency." While the district court thought it was "difficult to conclude that such condition was her pre-existing TBI, given that she was well enough to be released from a hospital before the fire," what turns the case in her favor is her allegation that the officers aggravated it at the scene of the house fire and loss of her dogs.

We also have an issue surrounding the officers' intent. On the deliberate indifference claim, the law at the time of the summary judgment motion was that plaintiffs had to show the officers subjectively disregarded a risk of harm. That standard derived from Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009). But the standard changed in 2015, when the Supreme Court issued Kingsley v. Henderickson, 135 S.Ct. 2466 (2015), which mandated an objective test: whether a reasonable person would appreciate the risk to which the pre-trial detainee was subjected. This is a more plaintiff-friendly standard, adopted by the Second Circuit in Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) (a case that I briefed). On that recent authority, the Court of Appeals hurls the case back to the trial court to reconsider the motion under Darnell. 

Too-tight handcuff claim returns to the district court

You don't see many cases alleging the police violated constitutional requirements in overly tightening handcuffs. But here's one out of Riker's Island where a pro se inmate wins his appeal against the City of New York.

The case is Johnson v. Turnbill, a summary order decided on March 20. Plaintiff was a pre-trial detainee at Riker's Island. That means he was not yet found guilty of anything. "Johnson’s complaint attributed his injuries in part to the duration and tightness of his handcuffs. An attachment to the complaint alleges that Johnson asked defendant Suarez for help after having been restrained in tightened handcuffs for three hours in a holding pen."

Here is the basic rule:

To succeed in an excessive force claim under the Fourteenth Amendment, a pretrial detainee like Johnson “must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). This Court has “recognized that excessively tight handcuffing that causes injury can constitute excessive force . . .” Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015).

The district court did not take up this issue on the City's motion for summary judgment. Nor did the City address it on the motion. This claim was simply overlooked. The Court of Appeals (Wesley, Jacobs and Eaton [CIT]) notices the claim. Back it goes to the district court to review whether plaintiff actually has a case.

Bergstein & Ullrich succeed in clarifying New York City punitive damages test

City Human Rights Law Damages Threshold, Now Clarified, Applied by Second Circuit

The panel said the lower threshold found by the state's Court of Appeals should have meant a district court allowed damages under the city's Human Rights Law to be sought.

By Colby Hamilton | March 16, 2018

New York Law Journal

U.S. Court of Appeals for the Second Circuit.

Damages under New York City’s Human Rights Law can be sought under a lower standard than under federal civil rights law—and a district court erred in not providing instructions to a jury for damages under the local law, the U.S. Court of Appeals for the Second Circuit said in an opinion issued Friday.

Veronika Chauca won a wrongful termination suit against her former company and bosses at Park Management center in 2015. A jury awarded her $60,500 after finding the company discriminated against her because she was pregnant.

However, U.S. District Judge Eric Vitaliano of the Eastern District of New York denied Chauca’s request to instruct the jury on damages under the city’s Human Rights Law, stating that there was “no showing of malice, reckless indifference [or] that there was an intent to violate the law”—the standard for damages under the federal Civil Rights Act.

On appeal in a previous ruling, the circuit found state law had not clearly resolved the standards issue, and the question was posed to New York’s highest court as to what the exact guidelines are for punitive damages under the city’s Human Rights Law.

Last year, the court responded that the standard is whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a conscious disregard for the rights of others. This standard, the panel noted Friday, “expressly rejected the application of the federal standard,” as the city’s Human Rights Law requires neither a showing of malice nor awareness of the violation of a protected right, according to the Court of Appeals.

The panel of Chief Judge Robert Katzmann, and Circuit Judges Robert Sack and Peter Hall, then held that the district court was wrong in applying the higher federal standard on the jury instructions question, and remanded the case for further proceedings.

“This confirms that the city’s law is an entirely separate statute than Title VII, not only for liabilities but for damages,” said Bergstein & Ullrich name attorney Stephen Bergstein, who represented Chauca on appeal.

Private attorney Arthur Forman was counsel for the Park Management Systems defendants. He could not be reached for a statement.

Public employee gets around Garcetti speech rule, for now

One of the more vexing issues in constitutional law is when public employees can speak out on important matters without fear of retaliation. In 2006, the Supreme Court ruled 5-4 that public employees have the right to speak out only in their capacity as citizens and not as employees. This distinction kills off the case if plaintiff speaks pursuant to his official job duties. Since the Garcetti ruling, most plaintiffs have lost their cases because their speech often draws from their official duties and management has the right to regulate that speech, no matter how important it is.

The case is Brown v. Halpin, issued on March 15. Brown was a lawyer for the Connecticut comptroller, providing legal advice to the retirement commission. She discovered that the state was not following the rules governing disability benefits, i.e., that disabled state employees were receiving benefits even if they could work other jobs. Brown called shenanigans on the statewide policy violation, advancing her concerns in writing. But the supervisors would not provide Brown's written objections to the commission unless she changed them to falsely support the incorrect standard for disability benefits. Brown would not do that, and she raised her concerns with the state auditor's office. Then Brown suffered retaliation for speaking out.

Does Brown have a case? What about Garcetti's rule that it's not free speech if the employee speaks pursuant to her official job duties? Brown's speech certainly related to her duties. But the district court denied the motion, citing Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), which held that a rookie police officer could not suffer retaliation after refusing to falsify a police report that implicated a sergeant in police misconduct. In other words, he had the right to "refuse to engage in unlawful conduct under the guise of his job responsibilities. (I argued Jackler). The trial court in Brown further held that "the pleadings do not admit that Brown is under an employment obligation to report misconduct to the Auditors."

The individual defendant in Brown appealed to the Second Circuit, claiming entitlement to qualified immunity. You can take up this immediate appeal on immunity grounds if the facts are clear that the defendant did not violate clearly-established law. But the Circuit has no jurisdiction to hear this case because "factual disputes preclude resolution of whether Halpin is entitled to qualified immunity. . . . The question of whether Halpin is entitled to qualified immunity is . . . not a pure question of law that can be decided on interlocutory appeal because it depends on resolution of a factual dispute: whether the proposed revisions [to Brown's memo on proper operation of the program] were false." The Court (Calabresi, Katzmann and Walker) also says the interlocutory appeal is inappropriate because factual considerations govern whether Brown spoke pursuant to her duties. In fact, the Court says, "Brown's written job responsibilities are sufficiently ambiguous that we cannot resolve this dispute on appeal."

So this is sort of a way around Garcetti, although mostly on procedural grounds since the facts are disputed and the Court of Appeals cannot definitively resolve this dispute. But I say sort of a victory since most employee speech cases die on the vine without this analysis. Brown's case returns to the district court for discovery. 

The Golden Rule and summations

When this case first went to the Court of Appeals, the Second Circuit used it to clarify when someone could invoke the civil rights laws to redress national origin discrimination. It was a ground-breaking decision, in which the Court explored what it meant to be Hispanic. For the plaintiff, it was a devastating loss because the Second Circuit vacated a million-dollar verdict over trial errors. Plaintiff loses the second trial, and the Court of Appeals affirms that trial loss.

The case is Barella v. Village of Freeport, a summary order issued on March 13. The issues this time around are different. It is not easy to get a new trial based on trial errors, as the judge has discretion to manage the courtroom and the standard of review is "abuse of discretion." Plaintiff argues he was denied a fair trial because defendants' lawyer invoked the Golden Rule in summation.

What is the Golden Rule? At trial, it's when you ask the jury to place themselves in your client's shoes. It's considered a manipulative tactic that plays on juror sympathy. But the Golden Rule is only prohibited when you are addressing damages. It does not apply when you are talking to the jury about liability. Plaintiff invites the Court of Appeals to extend the Golden Rule to summations when they address liability, but the Court of Appeals (Cabranes, Raggi and Vilardo [D.J.]) will not do so.

Barrella argues that Hardwick’s counsel engaged in “golden rule” argumentation during closing, which asks jurors to place themselves in the position of a party. He invites us to change our precedent regarding such arguments, requesting that we extend our prohibition on golden rule arguments beyond the context of damages (the only context in which they are forbidden) to any kind of liability. See Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir. 1990). We decline to do so. Regardless of whether Hardwick’s counsel in fact made a “golden rule” argument during closing, his argument was not made in the context of damages, and a new trial is not warranted.

The ministerial exception strikes again

An emerging trend in the area of employment discrimination law is the "ministerial exception," which holds that the Constitution prohibits certain employment discrimination lawsuits by "ministers" against their religious employers. That doctrine quashes a racial and religious discrimination lawsuit against New York Methodist Hospital.

The case is Penn v. New York Methodist Hospital, issued on March 7. The Supreme Court endorsed the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. 171 (2012), and the Second Circuit applied that ruling for the first time in an extended way in Fratello v. Archdiocese of New York, 863 F.3d 190 (2d Cir. 2017). The point is that the courts are not permitted to second-guess the hiring and firing decisions of religious entities when it comes to employees whose job duties take on ministerial functions, even if their formal job title is not minister. So, in Fratello, the case was dismissed under the ministerial exception because the plaintiff was the principal of a religious school and took on some religious duties in managing the students.

In this case, while the plaintiff was a duty chaplain, the focus is on the employer: whether the New York Methodist Hospital can invoke the ministerial exception. As the hospital's name would suggest, it originally operated as an explicitly religious institution. That is no longer the case, although "vestiges of NYMH's religious heritage remain, as "its Methodist influence can still be seen in the hospital," which "has retained significant aspects of its religious heritage" by, for example, telling employees during orientation that "patients are human beings who are created in the image of God." The hospital's Department of Pastoral Care endeavors to provide an "ecumenical program of pastoral care" to patients and to "see that the needs of the whole person -- mind and spirit as well as body -- are met." The Court of Appeals (Hall and Bolden [D.J.] with Droney in dissent) concludes:

While a close question, NYMH because of its history and continuing purpose, through its Department of Pastoral Care, is a “religious group,” and since Mr. Penn’s role within the Department of Pastoral Care was to provide religious care to the hospital’s patients and religious care only, the ministerial exception doctrine should be applied. Once applied, its application warrants this lawsuit’s dismissal.

 For starters, "Both before and after Hosanna Tabor, other circuits have applied the ministerial exception in cases involving 'religiously affiliated entit[ies],' whose “mission[s are] marked by clear or obvious religious characteristics.” And, "Courts have also allowed hospitals to invoke the ministerial exception doctrine in employment suits from pastoral staff members." In the end,

The Department of Pastoral Care required chaplains, like Mr. Penn, to distribute Bibles, perform religious rituals and organize and conduct religious services, including Easter services and memorial services. While NYMH may have shed significant aspects of its religious identity by amending its Certificate of Incorporation, the hospital’s Department of Pastoral Care has retained a critical aspect of that religious identity in order to provide religious services to its patients. These services, while not limited to those who are Methodist, are indisputably religious.

How to win a civil rights case after losing the disciplinary hearing

One of the challenges in representing public employees in civil rights litigation is that if they were disciplined prior to the lawsuit, you may run into procedural obstacles that are unique to public employees, res judicata and collateral estoppel. The plaintiff in this case gets around those obstacles.

The case is Abdelal v. Kelly, a summary order issued on February 21. Plaintiff was a NYC police officer who was fired in 2013 following a disciplinary hearing into alleged misconduct. Private employees do not always get due process hearings like this, but public employees often do. While the hearing gives the employee a chance to expeditiously prove his innocence before a hearing officer. If the employee wins the hearing, he keeps his job. If he loses the hearing, he can file an Article 78 petition in court. Those petitions often fail, as the courts are loathe to second guess the hearing officer's factual and credibility determinations. That is what happened here.

Plaintiff did not give up after losing the due process hearing and Article 78 petition. He filed suit in the Southern District, claiming he was treated differently because of his national origin and was subjected to a hostile work environment. How can he bring this case if the due process hearing sustained the disciplinary charges against him? Wasn't that his day in court. Sometimes yet, but not in this case.

The Court of Appeals (Walker, Lynch and Chin) finds a way to revive this case even though plaintiff lost the disciplinary hearing and Article 78. First, there is no res judicata (claim preclusion) problem because a civil rights lawsuit gets you damages that were never available during the disciplinary proceeding. In other words, the civil rights case is a new claim that is separate and apart from the one he lost at the hearing. The case for that proposition is Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995).

The tricker issue is collateral estoppel, or issue preclusion. Management argues that if plaintiff was found guilty of work-related misconduct at the disciplinary hearing, he cannot relitigate those issues in a civil rights case because those facts have already been resolved after a full and fair proceeding. But the law is more nuanced than that. Plaintiff did not raise his racial and religious discrimination claims at the disciplinary hearing, and the Appellate Division in rejecting the Article 78 appeal did not mention those issues, either. "The fact that the First Department concluded that the administrative record contained 'substantial evidence to support the finding that petitioner engaged in conduct prejudicial to the good order, efficiency and discipline of the NYPD' does not mean that the court considered and rejected Abdelal's claims that he was subjected to harassment and disproportionate punishment for discriminatory reasons."

Victory for Fair Housing Act plaintiff

The plaintiff in this case sued the New York City Housing Authority for disability discrimination relating to unhealthy conditions at her home. The district court dismissed the case under Rule 12, but the Court of Appeals reinstates the case, finding plaintiff satisfies the stringent Iqbal pleading standards.

The case is Tull v. New York City Housing Authority, a summary order issued on February 14. This is a failure to accommodate claim. Plaintiff has to show “(1) [s]he is a qualified individual with a disability; (2) the defendant is subject to one of the Acts; and (3) [s]he was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant because of [her] disability.” We focus on the third element.

While the Housing Authority argues that plaintiff cannot plausibly allege she was denied of the benefit of her apartment because of her disabilities, the Court of Appeals (Sack, Livingston and Carney) disagrees, stating:

Tull plausibly alleged, first, that living in her current apartment seriously exacerbates her medical conditions. She further alleged that NYCHA failed to accommodate her medical disability by denying her multiple requests to be transferred to a different apartment, either permanently, or on a temporary basis while necessary repairs were made to her current apartment. Tull repeatedly informed NYCHA that she cannot be present during “asbestos abatement[,] ․ the breaking down of walls and the removal of mold,” and that she must be “medically accommodated to make such repairs,” otherwise the repairs “will make [her] more ill.” Tull also attached letters from her doctors which confirm that “[i]t is very crucial for this high risk stroke patient to be transferred to new housing location with proper accommodations for her medical conditions.”

The Housing Authority also says plaintiff's requested accommodation is unreasonable. Again, the Court of Appeals sees it differently. "Notably, NYCHA's own Standard Procedure Manual explicitly recognizes a 'Transfer as a Reasonable Accommodation.' And in any case, the reasonableness of Tull's request cannot be determined on her pleadings alone. See Austin v. Town of Farmington, 826 F.3d 622, 630 (2d Cir. 2016) (“Reasonableness analysis is ‘highly fact-specific’ ․ [and] cannot be determined on the pleadings because the relevant factors are numerous and balancing them requires a full evidentiary record.”)."

Circuit clarifies constitutional medical privacy rights

This snafu erupted at the Rensselaer County Jail, where the password for limited-access health records was inadvertently made available so that inmates and jail employees suffered a privacy breach. These victims brought suit in federal court, but the judge dismissed the case because they lacked a constitutionally-protected privacy interest in their medical records since their medical conditions were neither serious nor stigmatizing, and they were therefore not exposed to discrimination and intolerance. The Court of Appeals reverses.

The case is Hancock v. County of Rensselaer, issued on February 9. The Constitution does not mention anything about privacy, but the Supreme Court says you have a zone of privacy "in avoiding disclosure of personal matters," including "information about one's body." This includes medical records. When reviewing legislative action in cases like this, courts apply intermediate scrutiny in determining if the statute is substantially related to an important government interest. In reviewing executive action like what happened in this case, courts as when the actions were arbitrary or shocked the conscience.

But since the plaintiffs did not consent to the access of their medical records, the Second Circuit is presented with a new kind of privacy case, requiring a new constitutional test. As the plaintiffs are not prisoners but jail employees, the Court applies the shocks-the-conscience test, bearing in mind that people have a fundamental interest in their medical privacy. While the district court sided with the County in holding that plaintiffs' medical conditions were not serious or stigmatizing, that reasoning derives from a Second Circuit ruling, Matson v. Board of Education, 631 F.3d 57 (2d Cir. 2011), which ruled against a music teacher, who had a weak medical privacy interest because her non-stigmatizing condition was revealed in a report about her alleged abuse of the sick leave policy. The Circuit now clarifies its medical privacy jurisprudence.

An interest in medical privacy derives not just from a desire to keep one's medical conditions to oneself but also from the collectively enjoyed benefit of being able to expect confidentiality from those we depend on to care for the most intimate aspects of our lives. A slow drip of exceptions would erode that protection beyond recognition. As such, the interest in preserving the integrity of the doctor-patient relationship deserves its own consideration independent of the idiosyncrasies of the privacy invasion. The baseline individual interest in privacy is thus substantially greater than whatever the least abashed individual would allow.

The Court holds that the greater the plaintiff's privacy interest in protecting his medical information, the more compelling the governmental interest must be in exposing the information. "But even the weakest privacy interests cannot be overridden by totally arbitrary or outright malicious governmental action." Moreover,

How to judge the government action depends on context. Government actors with specific duties of confidentiality or care unreasonably invade privacy even if they do so as a result of "deliberate indifference." On the other hand, a government actor in the midst of a pressing emergency might not be liable for even deliberate invasions. See id. Public disclosure (or threatened public disclosure) of medical information is a greater breach of privacy than one unauthorized government employee viewing the information, so greater care should be expected to prevent the former.

The district court must reconsider this case under the clarified rules set forth by the Court of Appeals in  this case. It also has to consider whether defendants are entitled to qualified immunity. Was the law at the time of the privacy breach clearly-established? That's for the district court to resolve.

Res judicata knocks out retaliation lawsuit

Here we learn a few lessons about refiling your claims and the limits to repeatedly prosecuting your case in federal court. The plaintiff's case is dismissed because the second lawsuit was not much different from the first, which the court had already dismissed on the merits.

The case is Soules v. State of Connecticut, decided on February 8. Plaintiff was a police officer who claims his Town employer harassed, discriminated and retaliated against him based on his disabilities, military service and his protected complaints. After he filed the lawsuit, he was fired, so plaintiff filed an administrative complaint with the Connecticut Human Rights Office, the local version of the EEOC. Meanwhile, the federal complaint was dismissed under Rule 12. When that happened, plaintiff filed a second lawsuit, claiming he was fired in retaliation for filing the first lawsuit.

This sequence of events probably happens quite often, but I have never thought about the consequences of the second lawsuit. The defendant moved to dismiss the second action on res judicata grounds, arguing that it was the same case as the first. Technically, it was not, since the first lawsuit did not allege unlawful retaliation and the second one did. Yet, the Court of Appeals (Jacobs, Raggi and Droney) says the first lawsuit repeatedly makes reference to the termination that awaited plaintiff, stating, "after the filing of the complaint [presumably an internal complaint or one with the CHRO], the defendants further retaliated against the plaintiff by subjecting him to leave without pay, and further baseless demands that he submit to invasive examinations, with the intent to punish him and fabricate a grounds for termination." Then, in opposing the motion to dismiss, plaintiff attached a statement to his brief that said "in addition to the unlawful conduct of the defendants directed at the plaintiff as set forth in his Amended Complaint, the plaintiff has been terminated by the defendants," claiming this constituted "further unlawful conduct by the defendants." The Court of Appeals says "his termination is mentioned throughout the opposition papers as the culmination of the course of retaliatory, discriminatory, and harassing conduct."

On this basis, the Court holds, plaintiff's "post-complaint conduct in Soules I effectively amended his complaint to add a retaliatory termination claim." True, parties usually amend through a formal motion. While the Court has held in the past that "a party is not  entitled to amend its complaint through statements made in motion papers," in this case, "it appears that the district court implicitly permitted Soules to amend the initial complaint to address his employment termination." That means the second complaint was essentially the same as the first, which was already dismissed, triggering res judicata, which ends his  dispute with the Town for good.