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."

NY Court of Appeals reinstates sexual misconduct finding against SUNY student

Student disciplinary hearings over alleged sexual misconduct make the news from time to time. When these allegations are resolved by public colleges instead of law enforcement, the process is open to criticism because the administrative hearings are not like criminal trials in that the evidentiary and procedural standards are relaxed. This case highlights that issue. The New York Court of Appeals holds that hearsay evidence was enough to support an adverse finding against the male student.

The case is In the Matter of Haug v. State University of New York at Potsdam, decided on October 18. The Appellate Division Third Department summarized the evidence this way:

Petitioner was a freshman at respondent State University of New York at Potsdam (hereinafter SUNY) in September 2014. In the early morning hours of September 7, 2014, he ran into a female student (hereinafter the complainant) with whom he had been friends for several years, and the two had sex in her dormitory room. The complainant reported to campus police shortly afterward that, while she had not declined to engage in sex and gave no “gesture saying that [the sexual encounter] wasn't welcome,” she had been sexually assaulted. She refused to reveal the identity of her assailant or submit to a sexual assault examination, but an anonymous tip subsequently pointed to petitioner as the assailant.

 The male student was originally suspended from school, but the college president determined to expel him. The Appellate Division ruled in the male student's favor, reasoning that the college lacked substantial evidence to support the adverse findings.

As set forth in the student code of conduct, consent to sexual activity cannot be inferred from silence and must flow from “spoken words or behavior that indicates, without doubt to either party, a mutual agreement to” proceed. The complainant's account was set forth by others who had conversed with her, with the Hearing Board considering written notes prepared by respondent Annette Robbins, SUNY's director of student conduct and community standards, and the hearing testimony of a campus police officer.

The complainant told Robbins that petitioner was a friend and that, after running into him on the night in question, she invited him to her dorm room. Petitioner tried in some manner to touch her once they got to the room, then locked the door and led her to bed. The two began “making out” on the bed and, while the complainant stated that she did not verbally consent when petitioner suggested that they have sex, she did take her shirt off. Petitioner took the complainant's pants off and had relations with her without wearing protection. The complainant indicated that she “froze up” and did “not respond” to petitioner's advances, although the record does not reveal how this inner turmoil was manifested or whether petitioner was or should have been aware of it. The Hearing Board found from this that the complainant did not affirmatively consent to having sex and that, as a result, petitioner engaged in sexual misconduct.

The Third Department goes on to state that "it is not clear to us that a reasonable person could find from these hearsay accounts an absence of 'behavior that indicate[d], without doubt to either party, a mutual agreement to participate in sexual intercourse,' as to do so would require overlooking the complainant's admission that she removed her shirt when sex was suggested. Indeed, the only path to finding a lack of consent under these circumstances would be to make inferences that do not reasonably follow from the hearsay accounts of what the complainant said, such as that petitioner intimidated her into agreeing to proceed or that the manner in which she 'froze up' should have caused petitioner to question her apparent willingness to engage in sex."

Hearsay is permissible in most state administrative hearings. In this case, the Third Department said,  the male student and the female complainant offered different accounts on the issue of consent.

Petitioner specifically stated that they began kissing after talking and that, after a while, the complainant took off both of their shirts. Petitioner then removed the rest of their clothing and asked the complainant if she had any condoms, to which she replied that she did not but that it was “fine” and no reason to worry. The complainant then straddled petitioner from above while they had sex and, after it was over, asked petitioner if he had fun. Simply put, petitioner's testimony seriously controverted the hearsay evidence indicating that the complainant had not given affirmative consent to sexual relations and, as a result, that hearsay proof did not constitute substantial evidence to support the determination.

Since Appellate Division authority holds that “when the hearsay evidence is seriously controverted, common sense and elemental fairness suggest that it may not constitute the substantial evidence necessary to support the [challenged] determination,” the Third Department vacated the findings of guilt against the student and further questioned whether the penalty of expulsion was fair.

The Court of Appeals reverses the Appellate Division's reasoning, noting that the substantial evidence test is "minimal" and "is less than a preponderance of the evidence." The Court says that the hearsay evidence along with the male student's testimony provided substantial evidence to support the finding that he violated the code of conduct. Since it was the province of the hearing board the college to weigh the evidence and resolve any conflicts in the evidence, the Appellate Division improperly re-weighed the evidence when its reversed the college's findings of guilt.

Pro se inmate wins appeal against Riker's Island

This inmate brought a Section 1983 claim against Rikers Island over unconstitutional conditions and treatment. The trial court threw out the case. The Court of Appeals brings it back.

The case is Valdiviezo v. Boyer, a summary order issued on October 18. Plaintiff was a pre-trial detainee, so he had not yet been convicted. That means his claim is analyzed under the Fourteenth Amendment and not the Eighth Amendment, which gives the jailers greater leeway in handling and treating inmates. A recent leading case on the Fourth/Eighth Amendment distinction is Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) (which I helped to brief). Plaintiff brings various claims, some of which may proceed to discovery on this motion to dismiss.

First, Plaintiff says the bathroom conditions at Rikers were so disgusting as to violate constitutional standards, and that the City did not correct this for 18 months despite inmate grievances. That response may be "so patently inadequate to the task" that it "may amount to deliberate indifference" under the Constitution. Here is what Plaintiff alleges (taken from the district court ruling):

Valdiviezo alleges that the "showers were used as urinals and smelled of urine" because the prison refused to add a restroom to the housing unit. He also alleges that shower tiles were cracked and missing (therefore increasing the risk that an inmate would cut himself and get an infection), that the walls, ceiling, pipes, and paint in the showers were corroded, that "water worms were found in the showers on multiple occasions," and that there were no shower pads or mats. Valdiviezo alleges that several complaints and grievances were filed regarding these conditions and that "on [a] few occasions" state officials inspected the showers, but that nothing happened as a result. According to Valdiviezo, these unsanitary conditions persisted for at least eighteen months.

Valdiviezo also alleges that he was exposed to human waste. According to Valdiviezo,
on both December 31, 2014 and January 19, 2015, his cell block flooded with "sewage," "human waste," "feces," and "polluted water." He further alleges that prison officials refused to move him or allow him to clean his cell. As a result, Valdiviezo was forced to "live in [these] squalor and unsanitary conditions" for an unspecified period of time. As with the shower conditions, Valdiviezo alleges that several grievances were filed to no avail.

OK, so that was disgusting. The facts in Darnell were similar. The Court of Appeals (Katzmann, Lohier and Stanceu [Court of Int'l Trade]) says these allegations state a claim. On remand, Plaintiff has to prove that "the City's response was 'patently inadequate to the task." 

Plaintiff also claims he had a medical emergency in the shower, and that jail officials told detainees to carry Plaintiff out of the shower, causing him to be dropped twice. Yes, detainees had to carry Plaintiff out of the shower. The district court said Plaintiff did not plead a claim under the Eighth Amendment. But the Second Circuit says this is really a Fourteenth Amendment claim because Plaintiff was still only a detainee. Under the Darnell standard, we got ourselves a ballgame. The Court of Appeals says:

The medical staff’s decision to permit detainees, who were likely untrained, to carry a man complaining of a neck and back injury could constitute inadequate care, as it could have resulted in more serious injury. And Valdiviezo alleged that his injuries were exacerbated as a result of the two drops; after the first fall, he was in more pain, and he lost consciousness after the second fall. . . . after Valdiviezo was dropped once, causing him to cry out in pain, the medical staff was aware that there was a risk that Valdiviezo would be dropped again. Accordingly, Valdiviezo sufficiently alleged that the two
members of the medical staff acted recklessly when they ordered the detainees to pick him up again.

Lynyrd Skynyrd drummer did not violate consent order in making a movie about his life

Lynyrd Skynyrd was a southern rock band that struck gold in the 1970s before several band members died in a plane crash in 1977. One of the survivors was Artimus Pyle, the drummer. The survivors entered into a "blood oath" promising "never to use the name Lynyrd Skynyrd" again, and years later, they entered into a consent decree that prevented them from exploiting the band name while allowing them to exploit their life stories and portray their experience with the band in movies. The question here is whether Pyle violated that consent order when he agreed to participate in a movie about his life.

The case is Van Zandt v. Cleopatra Records, decided on October 10. The district court said Pyle violated the consent order, and plaintiffs were awarded over $600,000 in legal fees. That victory has now been taken away by the Second Circuit (Carney, Hall and Newman), which carefully analyzes that order under First Amendment principles in holding that the order is internally inconsistent, or at least insufficiently specific, such that, under its terms, "Pyle is permitted to make a movie that describes his experiences with Lynyrd Skynyrd and to refer to the band, but he may not make a movie that is a history of the band." To phrase the issue that way is to answer it.

As the Court of Appeals sees it, the script for the movie "illustrates the inconsistency, or at least the insufficient specificity, of the terms of the Consent Order."

The script tells the story of the plane crash in which Ronnie and other members of the band were killed and from which Pyle walked away. That crash is part of the “history” of the band, but it is also an “experience” of Pyle with the band, likely his most important experience. Provisions of a consent decree that both prohibit a movie about such a history and also permit a movie about such an experience are sufficiently inconsistent, or at least insufficiently specific, to support an injunction.

Two judges concur, stating that the movie script does not exceed the authority that the consent decree. Under the decree, 

Each of the Individual Defendants . . . shall have the right to exploit his . . . own respective life story in any manner or medium, including . . . [a] motion picture[] [and] shall have the right to refer to “Lynyrd Skynyrd” and related matters and to describe and portray his experience(s) with “Lynyrd Skynyrd;” provided that no such exploitation of life story rights is authorized which purports to be a history of the “Lynyrd Skynyrd” band, as opposed to the life story of the applicable individual.”

Reviewing the script page by page, the two judges (Newman and Hall) say the movie is mostly about Pyle's life, which happens to include his extraordinary experience with the band (surviving a plane crash). The judges conclude:

Clearly, the plane crash and Pyle’s escape from it are a major experience of his life. Because the plane was carrying members of the band, two of whom were killed, it would have been impossible for Cleopatra to depict this experience of Pyle’s without some references to the band. The script does not portray the history of the band. It portrays an experience from Pyle’s life, precisely what section 3 of the Consent Order explicitly permits, and, in doing so, it refers to the band, as section 3 also explicitly permits.

These guys better call Saul

This is kind of a wild case. The Court of Appeals holds that the police had the right to detain a driver and his passengers while they searched the car for contraband (finding nothing) even though there was no probable cause to detain these people.

The case is United States v. Fiseku, decided on October 4. Having binge-watched all of Breaking Bad and now watching Better Call Saul, this sounds like something out of those TV shows. The police officer, Groppuso, saw Fiseku's car stopped on the side of the road in the middle of the night. Fiseku told the officer his car was not working properly and he was in town (Bedford, Westchester County) visiting a friend. The officer drove away, but something smelled fishy about all this so he immediately returned to the scene, but in doing so, he saw Fiseku drive into a parking lot, where he met up with two men who had somehow materialized out of thin air. The officer radioed for backup and they all questioned and/or cuffed these three men, who gave inconsistent answers to their questions about where they were going and what they were up to. The officers searched the care with the driver's consent, finding guns, walkie talkies, a screwdriver and some duct tape. And some gloves.

The detention was legal. The police can conduct an investigative stop under Terry v. Ohio, the Supreme Court's seminal 1968 ruling, if they have reasonable suspicion that criminal activity is afoot. The parties agree the officers had reasonable suspicion to question these guys but that they did not have probable cause to arrest Defendant until the officers looked inside the trunk. This case, the Second Circuit holds, "presents 'unusual circumstances' under which an officer may handcuff a suspect without 'transforming a Terry stop into an arrest.'"

Groppuso had reason to think these men were up to no good when he saw them in the parking lot. As this was a quickly evolving situation, the officer recognized how little he knew about the situation, prompting the pat-down frisk and handcuffs as a means to prevent them men from attacking the officer. While handcuffs are normally the "hallmark of a formal arrest," officers may take "reasonable steps to protect" themselves in special circumstances like this one. Here is the reasoning:

Gruppuso stumbled upon a suspicious scenario in the middle of the night in a remote, wooded location where three suspects had, it appeared, arranged to meet. His goal was not simply to identify the men, but to confirm or rebut his suspicion that they had committed, or were poised to commit, a home invasion or some other crime. The likelihood of ongoing or imminent criminal activity heightened the risk that one or more suspects might be armed and that they might attempt to fight or flee. Gruppuso made quick decisions about how best to protect both himself and the public, acting in
the face of uncertainty about how many associates might be present, what sort of criminal activity they might be involved in, or whether any of them might have access to a weapon.

Gruppuso made the cautious choice to restrain Fiseku in handcuffs at the outset of the investigatory stop so he could safely turn his attention to the two suspects in the vehicle and the two newly arrived police cruisers. Under these circumstances, “handcuffing was a less intimidating—and less dangerous—means of ensuring [officer] safety . . . than holding [Fiseku] at gunpoint.”

No double damages in wage-and-hour case

The plaintiffs in this class action won their trial alleging they were denied minimum and overtime wages. They won under state and federal law. The district court said the plaintiffs are not able to recover liquidated damages under both statutes. The Court of Appeals affirms.

The case is Tapia v. BLCH 3rd Avenue, decided on October 1. The trial court awarded liquidated, or double, damages under the state law claim. But federal law also provides for these double damages. Why can't plaintiffs get liquidated damages under state and federal law? Because, the Second Circuit says, the Fair Labor Standards Act does not allow for duplicative liquidated damages. The Court of Appeals said that in Rama v. Islam, 887 F.3d 118 (2d Cir. 2018). The Court reaffirms Rama in this brief opinion.

Plaintiffs also appeal because they want damages against an individual, Sharma. The trial court said Sharma was not personally liable because plaintiffs could not satisfy the relevant factors guiding that inquiry, including whether Sharma had control over the plaintiffs' employment. The multi-factor test is inherently factual, and since the Court of Appeals will not second-guess the district court's factual findings if they have some basis in the record, the ruling in Sharma's favor stands.

Judge Calabresi concurs. He writes that he is "happy" to do so on these issues, but he adds that the Court has never held that the FLSA bars a state from awarding double or even treble damages for labor law damages in cases like this. Instead, "our holding [in Rama] is limited to reading the FLSA to vacate the federal damage award, given the existence of state labor law damages." What bothers Judge Calabresi is that Rama could be read to mean that the FSLA damages should be vacated because state law does not allow double recovery. He worries that other federal courts "will read Rama as making a holding as to what is required by New York state labor law," which would "create all sorts of problems." He thinks the State Court of Appeals should take on this issue through Second Circuit certification. But while that may happen, it will not happen in this case.

Student due process case probably headed for state Court of Appeals

This case out of the Appellate Division looks at the due process rights of students who are accused of sexual misconduct at public universities. Since this case was decided by a 3-2 vote, it is sure to wind up in the New York Court of Appeals.

The case is In the Matter of Bursch v. SUNY Purchase, decided on September 19. After Bursch was charged with having nonconsensual sex with a student while she was under the influence of alcohol, the school scheduled a disciplinary hearing before a school-designated hearing board. The college told Bursch the hearing would take place on October 7, 2014 at 9:00 a.m. After Bursch got a lawyer and belatedly completed the FERPA forms that allowed the school to communicate with this attorney, the lawyer asked the school to schedule the hearing for noon that day because of a prior commitment. The school rejected that request because of witness availability. As a result, when the hearing proceeded on the morning of October 7, Bursch's lawyer was not present to advise Bursch (lawyers are not allowed to actually litigate at these hearings), and the charges were sustained, resulting in Bursch's expulsion from school.

The due process challenge is rejected. The majority rules that while the student handbook allows students to request a one-time extension of the hearing, that provision is nowhere to be found in the record and, in any event, this provision simply gives you the right to request an extension without actually changing the hearing date. Given the logistical difficulties in scheduling the hearing (lining up witnesses, judges, etc.) and the last minute request for an adjournment, it was not arbitrary and capricious for the college to deny the adjournment request. Moreover, due process does not require the college anything more than an opportunity to present a defense, the names of witnesses and written notice of the ruling. You have no right to a lawyer at these hearings, and as the attorney can only advise you at the hearing.

Two justices dissent. The justices summarize their reasoning this way:

The respondent Purchase College of the State University of New York (hereinafter Purchase) violated the petitioner’s right to due process and abused its discretion when it denied his timely request for a three-hour adjournment of the administrative hearing so that his attorney could attend. Given the gravity of the administrative charges facing the petitioner, and the threat of additional criminal charges stemming from an active police investigation, the petitioner’s right to secure the assistance of his designated attorney at the administrative hearing was fundamental. This right was wrongfully extinguished by Purchase when it summarily refused to accommodate the petitioner’s request for this exceedingly minimal delay.

This case should not be analyzed as if it involved a routine application for an adjournment in a proceeding before the Department of Motor Vehicles. Aside from the punishment of expulsion, which effectively ended the petitioner’s pursuit of higher education, the petitioner faced the prospect of serious criminal charges that could have resulted in a significant prison sentence. In light of the potential impact of the administrative hearing, the failure to grant a three hour adjournment was no ordinary administrative determination with consequences confined to the administrative realm, but a decision which deprived the petitioner of his right to due process. Every participant in an administrative proceeding is entitled to be treated fairly and in accordance with due process, regardless of the nature of the charges lodged against them. Accordingly, we must respectfully dissent.

State appellate practitioners know that 3-2 cases are ripe for review by the Court of Appeals, as the two dissenters are allowed to certify the case for review by that court. That is probably where this case is going.