Plaintiff cannot proceed under Title VII even though medical boss may have assigned doctors based on patient racial preferences

This plaintiff is a doctor who alleged that her employer violated Title VII because it was honoring patient requests to be treated by a white doctor. The Court of Appeals says she has no case even though she has alleged a discriminatory motive.

The case is Kairam v. West Side GI, Inc., a summary order issued on December 9. The facts are not clear, but it looks like plaintiff's employer had a professional relationship with another medical practice, known as the Gould Practice, which sent patients over to plaintiff's employer. Dr. Distler supervised plaintiff. The complaint alleges that plaintiff asked why Dr. Distler was not referring her any patients. Dr. Distler said that the Gould Practice was a "boutique practice" and that those patients wanted to see a doctor who "looks like" Dr. Gould, a white male.

This is a serious allegation. The Court of Appeals (Bianco, Pooler and Choe-Groves [Court of International Trade]) says this allegation supports a conclusion that defendant had a discriminatory motivation. The Court of Appeals does not develop this further, but there is a line of cases that says an employer cannot cater to the customer's racist preferences.

What loses the case for plaintiff, however, is that she has not alleged an "adverse employment action," which legalese for "plaintiff has not asserted that she suffered any harm from the discriminatory motivation." Plaintiff does not allege that honoring these patient demands cost her any compensation or significantly diminished her responsibilities. In most cases that do not allege a hostile work environment, the loss of money or prestige will give you a case. Without monetary or other tangible loss, being treated in a racist manner will not give you a case. At least not under Title VII, which has strict requirements to prove an adverse employment action.

This case arose in New York City, so I wonder if plaintiff might still win under the New York City Human Rights Law, which does not follow Title VII's adverse action requirements. Under the City law, plaintiff has a case if she was treated "less well" than other employees because of her race. That lenient standard is probably enough for plaintiff to proceed with her case. Plaintiff most likely pled claims under the City law, but the district court declined to exercise jurisdiction over them because it dismissed the federal claims.

Defense counsel cannot argue jury nullification in criminal case

This case was set for trial. The criminal defendant was charged with possession of child pornography. His lawyer wanted to tell the jury that they could engage in "jury nullification," which involves the jury entering a defendants' verdict not because the prosecution cannot prove the charges beyond a reasonable doubt but because they find the prosecution to be unjust. The trial court said defendant's counsel could make such an argument to the jury. The Court of Appeals says the trial court was wrong and defendant's counsel cannot argue jury nullification.

The case is United States v. Manzano, issued on December 18. Defendant was arrested for having relations with a 15-year-old girl. The defendant was 31 years old. The incident was captured on video. According to the Second Circuit, M.M. knew that Manzano was recording the video at the time, and Manzano did not threaten her or force her to engage in the sexual conduct. Nonetheless, M.M. was 15 years old when the video was recorded and therefore was incapable of consenting to sexual conduct as a matter of law. Although Manzano did not distribute the video, he uploaded it, using internet servers located outside of Connecticut, to his personal Google Photos folder." Defendant's lawyer in particular wanted to tell the jury about the sentencing consequences of this charge and suggest that the jury could acquit if it found the prosecution or sentencing consequences to be unjust.

Judge Underwood of the district court noted that he was prohibited from charging the jury that it could do a jury nullification, but the Court of Appeals disagrees, issuing this ruling before the trial started, a rare procedure but necessary since it affects how the trial would unfold. The Second Circuit (Sullivan, Chin and Parker [dissenting in part] says: Our case law is clear: 'it is not the proper role of courts to encourage nullification.' United States v. Polouizzi, 564 F.3d 142, 162–63 (2d Cir. 2009). Rather, 'the power of juries to ‘nullify’ or exercise a power of lenity is just that – a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.' United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997)." What the district got wrong was drawing an "arbitrary distinction between encouraging the jury via jury instructions – which it properly deemed impermissible – and granting defense counsel’s motion to argue nullification. This distinction is unsupported by our case law."

Judge Parker dissents in part, writing:

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent. The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.

Judge Parker adds that Judge Underwood thought a miscarriage of justice would occur if the defendants were required to spend 15 years in prison for his conduct. He writes: "An especially unsettling aspect of this case is that the record the prosecution presented to the District Court and to this Court is barren of anything that would explain, much less justify, the prosecutors’ decision to file the most serious child pornography charges available to them against a man who made a single video
which no one else ever saw and which he then attempted to erase."

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted. But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. “[F]ederal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts.”

2d Circuit sets fast deadline for Connecticut student-disability cases

Deadline cases are scary because the Court of Appeals may issue a ruling that changes the rules and kills off cases that were filed too late. This is one of them.

The case is PMB v. Ridgefield Board of Education, issued on December 16. This case is brought under the Individuals with Disabilities in Education Act, a federal student-rights statute that requires the parent to first file an internal grievance with the school district over the educational plan devised for their disabled child. If the parents are not satisfied with the district's Individualized Education Plan (IEP), they can request a hearing. If they lose the hearing, the parents have to appeal to the State Commissioner of Education. If that fails, the parents can file suit in federal court. That's a lot of deadlines. This case concerns the deadline for filing in federal court.

After the parents lost their appeal to the State Education Department on July 20, 2018, they filed this lawsuit on October 18, 2018, 90 days after the mailing of the state agency ruling. Under Connecticut law, after the final agency decision is mailed out, the parents have 45 days to "file the appeal with the clerk of the superior courts for the judicial district of New Britian or for the judicial district wherein the person appealing resides . . . " So the Connecticut statute provides for deadlines in filing in state court. But plaintiffs in this case filed in federal court, where they claim the 90 deadline still applies.

The Court of Appeals (Bianco, Chin and Sack) agrees with the school district that this case was filed untimely. Under the IDEA, aggrieved parents may file their lawsuits in state or federal court. The statute says they can commence the action either within 90 days or, "if the State has an explicit time limitation . . . , in such time as the state allows." I can see the confusion here. But the Second Circuit says that district courts in Connecticut have routinely applied the 45-day limitation to appeals to federal court, The one Connecticut district court that supports the parents' argument may not be good law anymore because of more recent legislative developments on the issue.

Apart from the statutory interpretation, the Court of Appeals notes that its holding in this case is consistent with the underlying purposes of the IDEA, which is that "the public has a strong interest in expedient resolution of these claims," and "the longer these proceedings are permitted to drag on, the longer we risk keeping a child in an educational program that is ultimately found to be inadequate. And this need for efficiency outweighs any disadvantage an aggrieved parent may face from a shorter limitations period."

Plaintiff's short physical height was not a disability under the Americans with Disabilities Act

This employment discrimination plaintiff argues that the Americans with Disabilities Act makes it illegal to discriminate against an employee because of her short height. The Court of Appeals rejects that argument, further holding that no jury can find she was harassed and terminated in retaliation for requesting a reasonable accommodation.

The case is Morey v Windsong Radiology Group, a summary order issued in December 12. Plaintiff wanted a reasonable accommodation because of her height. To proceed with her claim, plaintiff has to show she has a "disability" under the ADA. A disability is defined under the Act as a "physical or mental impairment that substantially limits one or more major life activities." Major life activities include, among other things, caring for oneself, performing manual tasks, sitting, lifting, bending, concentrating, working, and thinking." But not every impairment will constitute a disability.

While plaintiff says her unusually short height is a physiological, musculoskeletal condition which substantially limits one or more major life activities, the only limitation she alleges in the complaint is she cannot "see or reach" certain equipment at work, a medical office. But, as Judge Lynch stated when he was a district court judge, "a person's height is not ordinarily an 'impairment' covered by a disability by the ... ADA." Gowins v. Greiner, 2002 WL 1770772 (SDNY 2002). Since plaintiff does not sufficiently detail how her condition substantially limited any major life activity, the Second Circuit (Parker, Sullivan and Failla [D.J.]) says she cannot sue her employer for not providing a reasonable accommodation.

Plaintiff also says she was harassed for requesting the reasonable accommodation. She stated in her complaint that she was given a stool to operate a fluoroscope machine, and that she did not request any other accommodation. While she had additional trouble administering certain examinations at work, and she therefore sought another accommodation, the complaint does not identify what that accommodation was or how it was conveyed to management. And, at oral argument, plaintiff's lawyer conceded that operating that machine was an essential job function. This means that having someone else operate the machine would not be a reasonable accommodation, such the ADA does not require the employer to remove an essential job function as a means to accommodate a disabled employee.

Police need a good reason to cavity-search felony arrestees

A judicial fistfight erupted last week in the Second Circuit, as the judges sharply disagreed about how to determine whether police officers who cavity-searched a pre-trial detainee are immune from suit. The Court of Appeals ultimately finds the officers cannot invoke qualified immunity because the law was clearly established at the time of the incident that even people arrested on felony charges cannot be searched in this manner unless the police have a specific reason to believe the arrestee is hiding contraband inside his body cavity.

The case is Sloley v. VanBramer, issued on December 12. It all started when plaintiff got into a fight with his girlfriend, who called the police. The police claim plaintiff's girlfriend said that plaintiff may be involved with illegal drug activity and was in possession of illegal drugs. When the police pulled over plaintiff shortly thereafter (plaintiff and his girlfriend fought at her house and then he drove away), they claimed to find drugs in the car; plaintiff denies there was any drugs in the car at all. When they took plaintiff to the police station, they searched him by looking into his anal cavity for drugs, but they found none. Plaintiff now sues over that strip search under the Fourth Amendment.

If the law was clearly established at the time of this incident that cavity searches for felony arrestees violate the Fourth Amendment, then plaintiff can proceed with his case. If the law was not clearly established, then the police have qualified immunity and plaintiff cannot sue. The idea behind this form of immunity is that the police cannot be on notice that they violated the Constitution if the case law was not clear at the time. The question is this: what body of law do we draw from in determining of the law was clearly established? The general understanding is that we look the Supreme Court and Second Circuit authority. Even so, the prior case law must be close enough to plaintiff's case for the police to know they are breaking the law. Generalized legal propositions (such as the prohibition against unreasonable search and seizure) are not clearly-established law. You need case holdings that make the unlawfulness apparent.

Writing for the majority, Judge Pooler says the law was clearly established at the time the police searched plaintiff. The Second Circuit said in 2008 that the police need an "individualized reasonable suspicion that a misdemeanor arrestee is concealing weapons or other contraband based on the crime charged, the particular characterization of the arrestee, and/or the circumstances of the arrest before she may be lawfully subjected to a strip search." So what about felony offenses? The Second Circuit says, "we now hold that such searches do require reasonable suspicion." This means we got a new legal standard in this Circuit, as the Court says the misdemeanor/felony distinction makes little sense, and the Supreme Court has always wanted "readily administrable" Fourth Amendment rules rather than ones qualified by "if, ands, and buts."

Although the Court purports to identify a new civil right in this opinion, it also says the police were on notice that felony cavity searches were illegal at the time of this incident. While the Second Circuit had yet to squarely identify this right before issuing this ruling, "we have little trouble concluding that that requirement would have been sufficiently clear to a reasonable New York state police officer." Not only do we normally look to Supreme Court and Second Circuit authority, a right may be clearly-established "if it is supported by a robust consensus of cases of persuasive authority." The Supreme Court said that in District of Columbia v. Wesby, 138 S.Ct. 577 (2018). In this instance, we got a New York State Court of Appeals ruling, People v. Hall, 10 N.Y.3d 303 (2008), which held that felony strip searches require individualized suspicion, along with a slew of federal district court rulings in the Second Circuit which have also held as such. The police in this case were already bound by Hall, even though it's a state law case. Hall tips the scales in this case against qualified immunity, though it would only prevent qualified immunity for cases arising in New York and not the other states in the Second Circuit, i.e., Vermont and Connecticut. That's a "quirk," Judge Pooler says, but that's the way it is. Judge Newman agrees with Judge Pooler's analysis.

In dissent, Judge Jacobs, a longtime proponent of qualified immunity, objects that the majority is asking too much of police officers to keep track of both federal and state court rulings to avoid liability in federal court. Instead, he says, the Second Circuit's ruling in Gonzalez v. City of Schenectady, 728 F.3d 149 (2d Cir. 2013), which said the law was unclear whether felony strip searches violated the Fourth Amendment, means the law remains unclear and qualified immunity must attach in this case. Not only does Judge Jacobs object to reliance on a case from the New York Court of Appeals, but he takes issue with reliance on district court rulings, which means "officers would need to follow developments in the trial courts as well as in the appellate courts. I don't know what my colleagues think police do all day."

Inmate has claim against prison for gang-related attack

The Court of Appeals finds that an inmate who was attacked by a gang member can sue prison officials for deliberate indifference in failing to protect him from the attack. This case brings us the first dissenting opinion from one of the newest judges on the Second Circuit. The majority/dissent dispute turns on how the judges think a jury may interpret the evidence.

The case is Lewis v. Siwicki, issued on December 6. Lewis was in a maximum security prison that houses the most violent and dangerous inmates in Connecticut. He was also a gang member. A lieutenant learned that another gang member was threatening Lewis because he was accused of violating Bloods protocols. A gang member had decided that Lewis "was done." The lieutenant told plaintiff that "an assault was going to be against him." In September of that year, jail officials told Lewis that his safety cold be in "jeopardy" and that another gang member was "going to attack him." In November, a Bloods member attacked Lewis in the recreation yard with a piece of metal, inflicting serious wounds to his face and neck.

The majority (Katzmann and Newman) says Lewis can prove his deliberate indifference claim at trial. This reverses summary judgment in the district court, which misapplied the Supreme Court's seminal case on this issue, Farmer v. Brennan, 511 U.S. 825 (1994), which provides a two-part test: plaintiff must show he faced a substantial risk of serious harm, and plaintiff must show that prison officials were deliberately indifferent to that risk. The district court interpreted Farmer to mean the prison official must know the inmate faced serious harm. That is not what Farmer says, the majority concludes; "the first Farmer factor, substantial risk of serious harm, depends not on the officials' perception of the risk of harm, but solely whether the facts . . . show that the risk of serious harm was substantial."

Squaring away that issue, the majority (over Judge Park's dissent) says there was nothing vague about the threat that Lewis faced. Officials knew an assault was going to be against him," that his safety could be in "jeopardy," that a gang member was "going to attack" Lewis and there was an order that Lewis "was done." The Court says "there was nothing uncertain about this evidence." While the district court (and Judge Park) also said plaintiff has no case because there was a four-month interval between the jail officials' knowledge of the threat to plaintiff and the attack, in context, that was not too long a time-gap, particularly since everyone involved was in a high-security prison with violent inmates, including those "identified as threats to the safety of other prisoners." The majority notes that it may take some time for the aggressors to acquire their weapon and an opportunity to use it.

Plaintiff can also show deliberate indifference. While the district court (and Judge Park) says there can be no indifference because the jail practiced security measures such as handcuffing inmates whenever they left their cells (the inmate who attacked plaintiff somehow slipped through the cuffs) and they were always searched before they entered the prison yard, the jury can rule in plaintiff's favor because the jail did not place Lewis in a solitary recreation yard (which would have limited any opportunity for violence from another inmate) and the jail could have even transferred Lewis out of the institution completely.

Circuit issues important ruling on equal pay discrimination under Title VII (and other issues)

The Second Circuit tackles a couple of issues under Title VII in this case: what evidence makes out a prima facie case of pregnancy discrimination, and when can a Title VII claim discrimination on the basis of pay disparities? This case is good news for plaintiffs.

The case is Lenzi v. Systemax, Inc., issued on December 6. Plaintiff was Director of Risk Management who repeatedly complained she was not compensated like other male department heads. In April 2013, plaintiff made a business trip to California, submitting an expense report that raised suspicions for her supervisor, Reinhold, who thought plaintiff wanted reimbursement for a personal detour during the business trip. Plaintiff gave management her side of the story, insisting the expenses were legitimate. Meanwhile, on May 31, 2013, plaintiff told defendant's general counsel, Lerner, that she was pregnant. Ten days later, she told Reinhold she was pregnant in the course of explaining the last thing she wanted to do while pregnant was to extend a business trip while she suffered from morning sickness and "complete exhaustion." On June 13, 2013, Reinhold directed the company to conduct an internal audit of the expense report, the first time the company had ever done such a thing. The report expanded to include a review of plaintiff's emails and other possible violations of corporate policy. Lerner than placed a memo in plaintiff's file stating her job performance was deficient, even though she had previously received positive reviews. The audit report contained a misleading finding (having to do with comedian Howie Mandel) and she was fired that day, June 26, 2013.

We got two issues here: does plaintiff have a prima facie case of pregnancy discrimination? And although the Equal Pay Act squarely addresses this issue, can she also sue for pay discrimination under Title VII?

The district court said plaintiff cannot make out a prima facie case, but the Court of Appeals (Kearse, Pooler and Wesley) says the district court got it wrong. A prima facie case under Title VII is not hard to prove, and plaintiff easily shows she was fired under circumstances creating an inference of pregnancy discrimination, prohibited under Title VII. After all, she was fired shortly after telling management that she was pregnant; that sequence always supports a prima facie case. Plus, we got the first-of-its kind audit report which took on a life of its own and examined other areas of plaintiff's performance. From the plaintiff's standpoint, she was terminated under fishy circumstances. That's a prima facie case under Title VII.

The harder question is the pay discrimination claim. In the district court, plaintiff agreed with defendant's proposition that, like EPA claims, pay discrimination claims under Title VII require the plaintiff to show that her comparators held positions substantial equal to their own. That is not actually not the law, and the Court of Appeals excuses that lapse in judgment by plaintiff to square away this issue once and for all. The holding is that Title VII pay discrimination cases are not held to the same narrow standards under the EPA.

As it happens, a number of district courts in the Second Circuit have in fact held that pay discrimination claims under Title VII and the EPA are decided identically. But the Second Circuit says for the first time that "a Title VII plaintiff alleging a discriminatory compensation practice need not establish that she performed equal work for unequal pay. By its plain terms, Title VII makes actionable any form of sex‐based compensation discrimination." While a plaintiff can still prove her Title VII claim by showing that comparable men doing the same work received higher pay (the EPA model), she can also win under Title VII if the employer hired a woman for a unique position in the company but paid her less than had she been a man. Under the EPA, there is no claim, because there  are no male comparators. That result would not follow under Title VII. The Court reasons: "grafting the EPA’s equal‐work standard onto Title VII would mean 'that a woman who is discriminatorily underpaid could obtain no relief—no matter how egregious the discrimination might be—unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay.' Such a rule finds no support in the text of Title VII and would be inconsistent with Title VII’s broad remedial purpose, which counsels against “interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate.”

The Court of Appeals also holds that plaintiff has proffered enough evidence of discriminatory intent in violation of Title VII. A chart details plaintiff's title and experience with other male department heads, along with their salaries. Plaintiff earned less money than the men; while she had fewer years' experience than the men, she was still paid less than the market value for her position, and the men earned more than the market rate. Plaintiff also has evidence that Reinhold is a sexist jerk, commenting on womens' bodies, circulating stereotypical things about women, commenting on the women he'd like to have sex with, and commenting on plaintiff's clothing in a sexual way. Under the test set forth in Henry v. Wyeth Pharm., Inc., 616 F.3d 134 (2d Cir. 201), these are not stray remarks but relevant to prove discriminatory intent, as "Markou’s deposition testimony was not that Reinhold made one or two stray comments about women that might suggest a discriminatory motive. Rather, Markou’s testimony suggests that Reinhold’s comments were pervasive—that he consistently made remarks about his sex life and about women. Moreover, Reinhold held a senior role at the company; he was Systemax’s CFO." The Second Circuit does not apply the Henry factors very often, so if you handle these cases, pay attention.

Finally, the Court of Appeals says plaintiff makes out a Title VII retaliation, again reversing the district court's analysis. While the district court said plaintiff did not engage in protected activity, the record shows that she wrote an email complaining about the pay disparity as compared with her "peers." While the district court said the "peers" reference means plaintiff was not comparing herself with men, in fact, during a face-to-face meeting with Reinhold, plaintiff said "she wanted to be treated similarly to the males." She also referenced men in other conversations complaining about unfair compensation. Read in context, the email permits an inference that plaintiff was complaining about gender discrimination, even if, "standing alone, Markou's email may well be insufficient to establish that she engaged in protected activity."

Courts not required to review FLSA settlements under Rule 68

In 2015, the Second Circuit held that all private settlements in cases brought under the Fair Labor Standards Act must be approved by the federal judge presiding over the case. Since wage-and-hour cases are common in the SDNY and EDNY, this was a major ruling for parties, their lawyers, and the judges who now have to review the case to ensure the settlement properly compensates the plaintiff. That case left unresolved an open question: what about Rule 68 offers of judgment? Must federal judges review Rule 68 settlements also? The answer is no.

The case is Yu v. Hasaki Restaurant, Inc., issued on December 6. The 2015 ruling was Cheeks v. Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015). That case governs FLSA claims that the parties settle on their own through the usual settlement process: plaintiff makes a demand, defendant makes a counter-offer, plaintiff revises her demand, and so on until they reach an agreement. Rule 68 offers of judgment are different: defendant serves the offer on plaintiff, who has 14 days to take it or leave it. If plaintiff accepts the Rule 68 offer, the case is resolved and the court enters a judgment against the defendant. There is no such judgment in the more traditional settlements, as they always include language stating the defendant denies any liability.

Does Cheeks apply to Rule 68 offers of judgment? It's easy to answer that question in the affirmative. We usually see Rule 68 offers as a form of settlement, and if the courts are supposed to ask whether the plaintiff in a traditional settlement is getting his fair shake, why wouldn't that apply under Rule 68? The Second Circuit (Walker, Hall and Calabresi [dissenting]) recognizes the similarities between settlements under Cheeks and those under Rule 68, but it applies a traditional statutory construction analysis in holding that Rule 68's mandatory language that the clerk of court must enter judgment once the plaintiff accepts a Rule 68 offer means there is no judicial fairness review of the settlement. The FLSA does not address this precise issue, and "the holding in Cheeks was limited to . . . dismissals with prejudice" that do not involve Rule 68 offers.

Judge Calabresi issues a long and "emphatic[]" dissent, stating the only reasonable interpretation of the Rule 68/FLSA dynamic is to have the courts review all resolutions, including those under Rule 68. The majority rejects it, interpreting it to mean that the Court of Appeals "should insert a paternalistic judicial fairness proceeding into Rule 68(a) settlements of FLSA claims that Congress does not require and the parties, represented by counsel, do not want." The majority continues:  

we find no indication by Congress or the Supreme Court that the FLSA requires judicial approval of stipulated judgments concerning FLSA claims in the context of ongoing litigation, we decline to pull such a requirement out of thin air with respect to Rule 68(a) offers of judgment settling FLSA claims. Neither amici nor the Dissent has identified a reliable source in the statutory history that demonstrates “the necessary clear expression of congressional intent required to exempt the statute from the operation of Rule 68."

It is here where Judge Walker gets creative:

Our holding to the contrary, and our reasoning supporting it, is dismissed as “simplistic” by the Dissent, to which our answer is that there are frequently times when “less is more,”107 and this is one of them. Congress knows how to require judicial approval of settlements and dismissals when it wants to.108 Appeals to the broad remedial goals and uniquely protective qualities of the FLSA do not authorize us to write a judicial approval requirement into the FLSA, and thereby into Rule 68(a), when the text of both provisions is silent as to such a requirement.

The footnote quotes from Phillip C. Johnson, Miles van der Rohe 49 (1947) (ascribing the phrase “less is more” to the minimalist architect, Miles van der Rohe).

One issue not addressed here is whether this ruling will encourage parties to forego the time-consuming Cheeks review by simply resolving their FLSA claims under Rule 68. That would be an obvious end-run around the Cheeks procedure and defeat its purpose. What the majority would probably say about this is that Congress can deal with that problem on its own, and that the courts do not exist to deal with any consequences flowing from their statutory rulings.

Monell, Monell, Monell

We used to have a judge at the federal courthouse in White Plains who held court every Friday morning, disposing of a smorgasbord of matters, one-by-one, from motions to dismiss to discovery disputes to pre-trial conferences to you name it. You would learn a lot while waiting for your case to be called, as everything was done in open court. Judge Brieant was decisive and did not mince words. One day, a lawyer was trying to advance his case but Judge Brieant kept reminding him of the rules guiding municipal liability in Section 1983. It's been around 20 years, but I can still hearing his voice booming: "Monell, Monell, Monell!"

The case is Kimble v. Kingston City School District, a summary order issued on November 26. Monell, Monell, Monell is still an issue. What is Monell? Many years ago, the Supreme Court said that if you want to sue the government for civil rights violations under 42 U.S.C. 1983, you have to name the individual violators. You could also sue the employer, such as a county, town or village, only if the constitutional violation resulted from a municipal policy or practice. You don't have to come forward with a written policy. Rather, we can assume a policy exists if the violation is widespread within the department or municipality, or if a final decisionmaker committed the civil rights violation. That was the Monell case, issued in 1978. It's all very complicated, because proving a Monell violation is time-consuming and turns on legal intricacies. While there are sometimes good reasons to pursue a Monell claim, i.e., pursuing municipal reform or avoiding qualified immunity (which individual defendants but not municipalities can invoke), it is usually easier to just sue the individual supervisors or police officers, whose damages or settlements are usually paid by the municipality anyway. 

In this case, the plaintiff sued the Kingston City School District, in my neck of the woods in Ulster County. Plaintiff, who worked as a school resource officer at the district (and also worked for the local police department), claimed the district retaliated against him because he complained that other students were bullying his son. The district court stated that "Plaintiff alleges that Defendant District took inadequate measures to protect his son; and, as a result, other students attacked and injured his son."

To bring a First Amendment retaliation claim, the plaintiff must show he complained about a matter of public, not private, concern. The district court said Kimble only complained about a private matter, because the complaint concerned his child. I am not sure that ruling was correct; student bullying is a problem nationwide. But the Court of Appeals does not take up that issue, though it deems it an interesting one. Instead, the Court of Appeals (Wesley, Livingston and Bianco) focuses on Monell, concluding that plaintiff failed to plead an adequate claim against the school district. Since plaintiff pleaded no claims against any individual defendants, the case is over.

Why did Kimball lose the case? The Circuit says, "Kimble makes no attempt to argue that the actions alleged to have violated his rights here were made pursuant to a 'policy' or 'custom'; he thus necessarily relies on the third theory—that an official with final policymaking authority took action regarding, or made the specific decision with respect to, his rejection from a school security officer position and his removal from his school resource officer position." But the Court says plaintiff did not allege facts tending to show the constitutional violation was pursuant to a municipal policy or custom. Instead, he argued that "the only fact he must allege is that a municipal defendant took some action that violated his rights." That is not enough, the Court says:

the decision not to hire Kimble as a school security officer may have been made by low-level employees who removed his name for consideration just as plausibly as by a final policymaker. Furthermore, while contracts submitted in support of the District’s motion to dismiss demonstrate that the superintendent had the authority to request Kimble’s reassignment from the Town of Ulster Police Department, Kimble alleged only that "defendant" directed his reassignment. In the absence of some factual allegations, it is impossible for any court to engage in the necessary analysis of whether Kimble’s claim properly stems from the action of a final policymaker under state law or, conversely, improperly seeks to impose respondeat superior liability on the District. Having failed to plead any facts regarding the chain of events involved in the decisions not to hire him as a school security officer and to remove him from his position as a school resource officer, Kimble has failed to plead a municipal policy or custom.

2d Circuit confirms employee was fired in retaliation for union activity

It is against the law for an employer to retaliate against an employee for her union activity. If the employee thinks she was fired for this reason, she can take her claim to the National Labor Relations Board, which will hold a hearing and issue a determination. If the employee wins the hearing, the employer can challenge that finding in federal court, which gives the NLRB some deference in its fact-finding. That is what happened here.

The case is Parkview Lounge, LLC v. National Labor Relations Board, a summary order issued on October 25. Davis was the employee. The NLRB said that management fired Davis for participating in union activity, and it ordered her reinstatement and backpay. Management says Davis was fired for cause.

The legal standard guiding federal court review of NLRB rulings is whether "its legal conclusions have a reasonable basis in law" and the factual findings are "supported by substantial evidence." Pay close attention to the standard of review. "Reasonable basis in law" does not mean the NLRB's legal analysis has to be ironclad and airtight. It means the legal analysis has to be "reasonable," a lower standard. And "substantial evidence" is lower than the "preponderance of the evidence" standard governing civil lawsuits, which is a 51 percent probability that the plaintiff is correct. "Substantial evidence" is lower than 51 percent, so long as the factual conclusions are still persuasive and stem from some evidence in the record. These lower standards of proof give the NLRB more leeway and discretion to manage the workplace based on its expertise.

This all means as follows: (1) the NLRB had a factual basis to find that management fired Davis because he took part in a union meeting. Management says the decisionmaker, Packin, did not know about Davis's protected activity. But the record shows that

according to Davis’s testimony, Ray Quiñones, a Parkview manager who was present at the January 27 meeting, gave a direct response to the staff and assured employees that he would relay to Packin the workplace concerns that Davis raised there. Geoffrey Daley, another manager present at the January 27 meeting, testified that he informed Packin about Davis’s comments at the January 27 meeting before she was terminated. This evidence, taken within the context of the record as a whole, adequately supports the Board’s conclusion that Packin knew of Davis’s protected concerted activity when he discharged her." 

This is not a conjectural inference but a rational one, the Second Circuit (Walker, Carney and Koeltl [D.J.]) concludes.

What about retaliatory motive? Substantial evidence supports the NLRB's findings as the motive, as well. Davis was fired only two days after she attended the meeting. "Although Parkview contends that the Board afforded the timing undue weight, the Board was entitled to treat the brief two-day interval as probative of retaliatory animus." And, the evidence supports the NLRB's finding that management gave a false reason for Davis's termination. While management said Davis was unable to work with management,

The record demonstrates that, in different contexts, Parkview gave inconsistent reasons for Davis’s termination and that Davis had been praised for her work not long before she was shown to the door. Davis testified, and Parkview did not challenge the assertion, that Packin told her she was being terminated because she did not “get[] along with management.” In its official report to the New York State Department of Labor, Parkview gave “issues with service,” in addition to management issues, as a reason for Davis’s termination. Moreover, these stated reasons were at odds with the compliments Packin and another manager had given Davis just one week before her discharge: that she “was one of the stronger servers.” The presence in this record of such inconsistent justifications and assessments justifies the Board’s determination that the employer’s explanation for discharge was pretextual.

Note to plaintiffs: inconsistent or shifting explanations for the employee's discharge is evidence of pretext.

So what about the remedy: backpay and reinstatement. Again, the Second Circuit defers to the NLRB. While management says the National Labor Relations Act says employees cannot be awarded back pay if they were suspended or discharged, and that this means Davis gets nothing because she was fired for cause, the NLRB found, and the Court of Appeals agrees, that while "the record does contain evidence that Davis had conflicts with management and that her performance had been subject to criticism on more than one occasion. But Parkview cites no authority for the proposition that, when the record contains evidence of an employee’s concurrent performance issues or conflicts with management, the Board may not order backpay and reinstatement after determining that an employer engaged in unlawful retaliatory acts with regard to that employee, and we are aware of none."

Court of Appeals says Congress can subpoena Trump financial records

Legal issues arising from the Trump presidency and taking up more space in the federal court dockets, from the district courts all the way to the Supreme Court. This time around, the Second Circuit rules that a congressional committee has the legal authority to subpoena the private financial records of Donald Trump and his family, who are also his business associates.

The case is Trump v. Deutsche Bank AG, issued on December 3. This case has been on the fast-track all year. The Southern District of New York issued a ruling in this case in May 2019, and the Second Circuit (Hall, Newman and Livingston in dissent) issued a 100+ page decision only a few months after hearing oral argument on August 23.

This is not one of the more glamorous issues that have arisen from the Trump presidency. Other cases involve sex payments to porn stars, impeachment, et. al. This case started when Congress decided to explore how loopholes allow corruption, terrorism and money laundering to infiltrate the American financial system. The Financial Services Committee said “The movement of illicit funds throughout the global financial system raises numerous questions regarding the actors who are involved in these money laundering schemes and where the money is going.” And the Chair of the Intelligence Committee said it is investigating

“[t]he scope and scale of the Russian government’s operations to influence the U.S. political process”; “[t]he extent of any links and/or coordination between the Russian government, or related foreign actors, and individuals associated with Donald Trump’s campaign, transition, administration, or business interests, in furtherance of the Russian government’s interests”; “[w]hether any foreign actor has sought to compromise or holds leverage, financial or otherwise, over Donald Trump, his family, his business, or his associates”; and “[w]hether President Trump, his family, or his associates are or were at any time at heightened risk of, or vulnerable to, foreign exploitation, inducement, manipulation, pressure, or coercion.”

What is the constitutional scope of a Congressional investigation? How far can Congress go in the course of overseeing the financial system and other institutions? There is no dispute that Congress has authority to conduct investigations. But that scope is not always clear, because few people bring lawsuits over these investigations. Judge Newman notes that while the Supreme Court says Congress can obtain information pursuant to its legislative authority under the Constitution, that power is not unlimited. In 1955, the Court said in Quinn v. United States that "The power to investigate 'must not be confused with any of the powers of law enforcement.' “Nor does it extend to an area in which Congress is forbidden to legislate.' 'Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights . . . .' And, most pertinent to the pending appeal, the power to investigate “cannot be used to inquire into private affairs unrelated to a valid legislative purpose.'” Trump's lawyers invoke the italicized portion.

Over a lengthy dissent from Judge Livingston, the majority says that Congress can obtain the financial records of Trump and his family/business associates. Here is the holding:

The Committees’ interests concern national security and the integrity of elections, and, more specifically, enforcement of anti‐money‐laundering/counter‐financing of terrorism laws, terrorist financing, the movement of illicit funds through the global financial system including the real estate market, the scope of the Russian government’s operations to influence the U.S. political process, and whether the Lead Plaintiff was vulnerable to foreign exploitation.

The Court also holds that the legislative interest in investigating these areas outweighs any privacy interests invoked by Trump. Not only is Congress investigating matters "of the highest order," as lawmakers are looking into "national security and the integrity of elections. By contrast, the privacy interests concern private financial documents related to businesses, possibly enhanced by the risk that disclosure might distract the President in the performance of his official duties."

Pro se inmate wins excessive force, retaliation appeal

This inmate claims that correction officers smacked him around for no good reason. The district court dismissed the case from the outset, but the Court of Appeals reinstates the claim, ruling that the plaintiff has sufficiently alleged the officer hit him without justification, and that he did so in retaliation for the inmate's free speech.

The case is Fabricio v. Annucci, a summary order issued on November 6. It is not uncommon to see the Court of Appeals reinstate lawsuits like this. The trial courts often dismiss Section 1983 civil rights claims filed by inmates, many of who prosecute their appeals pro se, without a lawyer. This guy wins the appeal on his own. He alleges the following facts:

The excessive-force claim centers on Fabricio’s allegations that Officer Long “smack[ed]” him in the eye after several officers had subjected Fabricio to a search. Fabricio alleged that the officers’ stated reason for singling him out at first — that he was wearing too many layers of clothing — was pretextual, and that the real reason was that he had reported a correction officer’s misconduct at another prison. The officers then searched Fabricio who, believing the reasons for the search to have been pretextual, “start[ed] looking for [the officers’] names,” at which point one of the corrections officers told him to “go and sit down on [a] metal chair.” Fabricio did so, and then got up again, at which point that corrections officer pushed him back into the chair and said, “don’t miss[]pell my name.” Officer Long then “smack[ed]” Fabricio “hard . . . on his right eye.” Fabricio also alleged that, after Officer Long hit him, Officer Long warned Fabricio not to file a grievance or to seek medical attention lest he “go to the box” for an “assault on staff.”

Sounds like a case, no? To survive a motion to dismiss, inmates have to allege that the violence was not done "in a good-faith effort to maintain or restore discipline." While plaintiff did allege that one of the officers told him to sit down, which might suggest that he failed to comply with a directive, "Fabricio also alleged that another officer had already shoved him back in the chair, supporting an inference that no additional force was necessary to restore discipline, even assuming any had been necessary to begin with. Officer Long’s threat about what would happen if Fabricio sought medical attention, meanwhile, further supports a reasonable inference that Officer Long was not acting in good faith — as does Fabricio’s allegation that he was singled out in the first place because he had reported officer misconduct at another prison."

We also got a retaliation claim. Plaintiff's prior grievance against the correction officer. "Fabricio alleged that Officer Long warned him that 'if he [wrote] a grievance about” Officer Long’s alleged use of force, Fabricio would have to 'deal with the consequences.' After Fabricio filed such a grievance, and while Fabricio was waiting to be released from his cell so that he could go to the gym, Officer Long told him that he was 'on hold,' and added that he had 'got the grievance' and made an off-color remark about what he planned to do with it. We have little trouble concluding that Fabricio’s complaint sufficiently alleges protected conduct and, in light of Officer Long’s alleged comments, a causal connection between that conduct and the action alleged to have been retaliatory."

If you want First Amendment protections, join the union

In 2013, the Court of Appeals held that union membership is free speech activity. This means that management cannot retaliate against employees because they belong to a public employee labor union. The question is now whether non-union members who are represented by a union during collective bargaining also have First Amendment rights to associate with the union.

The case is Donohue v. Milan, issued on November 18. The 2013 decision was State Employees Bargaining Agent Coalition v. Rowland, 718 F.3d 126 (2d Cir. 2013). In this case, the plaintiffs were let go in a reduction-in-force in around 2012. They worked for the New York State Thruway Authority, which had to implement cost-saving measures around the time it was financing a replacement for the Gov. Malcolm Wilson Bridge, also known as the Tappan Zee Bridge. Some of the layoffs were non-union members, also called agency fee payers (AFP's). Can the AFP's sue under the First Amendment in a retaliation case? The Court of Appeals says they cannot.

The issue on this appeal is: “Under Rowland, do employees enjoy First Amendment protections merely because they are represented by a union during collective bargaining such that an employment decision based on that representation is subject to strict scrutiny?” Why is this? Because, the Second Circuit says, "the First Amendment protects the practice of persons sharing common views banding together to achieve a common end.” But that case "did not say that being represented by a labor union during collective bargaining by itself conferred First Amendment protection and the heightened scrutiny that comes with it." The Court adds for good measure, "we have never held that anyone who is represented during collective bargaining is for that reason alone entitled to First Amendment protection from government interference, and we decline to do so now."

Simply put, the AFP's did not "engage[] with others in a collective effort on behalf of shared goals." What this means is that "AFPs who affirmatively disassociated with a union by objecting to paying for a union’s political and ideological projects but who continued to be represented by the union during collective bargaining could not claim that an adverse employment action interfered with their right to associate with the union." On the other hand, the union member plaintiffs can proceed with their case. They did affirmatively join the organization and therefore enjoy the benefits of the Rowland decision.

Prison class-action consent decree is revived

In 1982, a consent degree was entered that required Green Haven Correctional Facility to provide inmates with adequate health care. An independent monitor then audited the health care at Green Haven to ensure that it satisfied constitutional standards. The consent decree was lifted in in 2015, after class counsel advised the district court that the state had represented that it would meet with plaintiff's expert to enable him to present his expert findings with respect to medical care. One inmate has now challenged the termination of the consent decree. The Court of Appeals agrees with him, and the consent decree is operative again.

The case is Irvin v. Harris, issued on November 19. Consent decrees became a thing in the 1970s and 1980s when plaintiffs' lawyers were able to prove that jails and prisons were not in compliance with constitutional standards. The decree meant that the institutions had to submit to monitoring from outside experts and lawyers. Under the Prison Litigation Reform Act of 1995, Congress made it easier for institutions to have the decrees lifted. As you can see from above, the Green Haven decree was lifted in 2015. But there were problems in lifting the decree. It appears the plaintiffs' class counsel did not adequately consult with Green Haven inmates about termination of the decree. One of those inmates is Irvin, who brought asked Southern District of New York to reopen the decree. The SDNY denied that motion, but the Court of Appeals (Pooler, Lohier and Carney) agrees with Irvin.

Irvin's arguments are as follows:

Irvin argued that the termination should be rescinded because, among other arguments: (1) if class counsel had just “taken the time to come to the prison and seen for themselves, by interviewing some of the class members themselves, they would have gotten completely different opinions,” (2) class counsel “lacked enough information and the authority to withdraw the opposition to the termination,” and (3) class counsel withdrew their objections to termination “without consulting with any of the individual members of the class, especially, those inmates housed in the Unit for the Physically Disable[d].”

The Court first rules that Irvin has standing to bring this motion. He satisfies the high burden associated with standing to reopen the case. The Second Circuit states that "it is undisputed that no named representatives were present to protect the interests of the class during termination proceedings, because none of them were still incarcerated at Green Haven and no new representatives had been substituted in. This exemplifies 'extraordinary circumstances in which a non‐party had interests on which the outcome of the proceedings had significant consequences . . . yet those interests had not been adequately represented during litigation, because of the peculiar structure of [the] case.'” And, Irvin is still connected with the suit and is therefore bound by the judgment terminating the consent decree. This case is Irvin's business, and that means he has standing.

On the merits, the Court notes that “the Due Process Clause ,. . . requires that the named plaintiff at all times adequately represent the interests of the absent class members.” The decree is so old that none of the named class representatives were still incarcerated at Green Haven when the termination proceedings were underway. This means none of the named class representatives retained interests in common with the class. "In short, named representatives of a Green Haven inmate class certified 35 years before the relevant proceedings do not adequately represent the class when they are no longer Green Haven inmates and have not continued to pursue the litigation." The Court concludes that, based on the lack of notice about the terminating proceedings, the class of current inmates were not adequately represented when the consent decree terminated.

How to plead discrimination under Title VII

A few years ago, the Second Circuit issued a ruling that had important consequences for pleading Title VII violations in federal court. The court seemed to make it more difficult to dismiss these cases for failure to state a claim, which in turn would make it easier for plaintiffs to proceed with discovery. This case demonstrates how it all works.

The case is Khanna v. MUFG Union Bank, a summary order issued on November 19. Note that this is a summary order that reverses the Rule 12(b)(6) dismissal. Normally, a Second Circuit ruling that reverses the district court is a big deal -- trial court judges in the federal system are not dummies, after all -- but I've noticed the Court of Appeals often reverses Rule 12 dismissals through short, summary orders that do not detail the facts or the reasoning. What the Court of Appeals is telling us is that some of these reversals are not that complicated. The message to the district courts is that these cases are not to be dismissed lightly. If you really want to get rid of the case, wait until the defendant moves for summary judgment.

In the world of Rule 12 dismissals, things got easier for plaintiffs in 2015, when the Court of Appeals issued Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which is a must-read for any Title VII lawyer. In that case, the court said that "“Under Iqbal and Twombly, . . . in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against [her] and (2) [her] race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Iqbal and Twombly are the Supreme Court rulings from 2007 and 2009 that said the plaintiff must plead a plausible claim to avoid dismissal under Rule 12. While most plaintiffs' lawyers dislike Iqbal and Twombly (which made it easier to dismiss cases from the outset), the Vega standard is not burdensome, and it revives Khanna's case. The district court said plaintiff had no case for this reason: "“While it is true that many industries are dominated by white men, being out-numbered or the lone minority in an office setting is not enough, without more, to give rise to a gender or race-based discrimination claim.” But the Second Circuit (Sack, Hall and Bianco) sees it differently:

The District Court’s conclusion overlooks Khanna’s claims that she was treated less favorably than her white male coworkers. Khanna alleged that she was provided fewer resources, given fewer responsibilities, and held to a higher standard than her white male coworkers. Khanna also alleged that Nolen spoke to her in a patronizing manner and was pleasant and personable to her white male colleagues. For example, in a meeting about Khanna’s work performance, Nolen reminded Khanna in a condescending tone that she should say “please” and “thank you” at all times. Khanna further alleges that she was replaced by a white male the day after her termination.

In sum, the facts alleged in Khanna’s Second Amended Complaint show the sort of “mosaic” of intentional discrimination based on “bits and pieces” of evidence that we expect to see in a discrimination claim because “clever men may easily conceal their motivations.”

I have found that evidence like this is hard to prove: that the employer's office manner was more hostile to black or female employees than white or male employees. It's just tough to quantify this kind of evidence. But that kind of treatment does violate Title VII. Plaintiff will now have to prove it in discovery.

Arbitrator had authority to make class action determination

This case involves people who worked for Sterling Jewelers who claim the company discriminated against them the basis of gender by paying them less money than male workers. The problem for the employees is that they signed an arbitration agreement when they commenced employment with Sterling. That arbitration agreement has been the subject of extensive litigation over the years, and this is the fourth time this case has reached the Court of Appeals, which issued its first ruling in this dispute in 2011. The litigation is still raging, as demonstrated by this opinion.

The case is Jock v. Sterling Jewelers, Inc., issued on November 18. The arbitration clauses are called RESOLVE agreements. Employers like arbitration because they are less expensive to litigate than full-blown lawsuits, as they proceed more quickly than federal or state court cases, and the disputes are resolved by an arbitrator, not some sympathetic jury who might throw the book at the employer and then issue a huge damages award on the theory that management has deep pockets.

This time around, the dispute concerns what to do about the arbitrator's determination that the RESOLVE agreement prohibits class arbitration. That's another reason management likes arbitration agreements. They usually prohibit class litigation and instead require the disgruntled employee to litigate her case individually, which is more burdensome for the employee who does not have strength in numbers. In this appeal, management says the arbitrator improperly interpreted the RESOLVE agreement to allow for a class action. From that argument, management asserts that employees who did affirmatively opt in to the arbitration proceeding are not part of the class.

So the appeal boils down to whether the arbitrator had any authority to find that the RESOLVE agreement authorizes class actions. The plaintiffs argue that since all Sterling employees signed that agreement, they agreed that, if any of them initiated a class proceeding, the arbitrator in that particular proceeding would be empowered to decide class arbitrability and, if she deemed it appropriate, to certify a class encompassing other employees' claims.

The Court of Appeals (Hall, Carney and Koeltl [D.J.]) agrees with the employees. A general rule in arbitration cases is that courts do not like to second-guess arbitrator judgments and rulings. The whole point of arbitration is to keep the case out of court. If courts second-guess arbitration rulings, that defeats the purpose of arbitration, which is to streamline disputes. While the district court in this case rejected the arbitrator's judgment on the class action issue, the Court of Appeals revives it. The reasoning is in two parts:

First, "Although the absent class members have not affirmatively opted in to this arbitration proceeding, by signing the RESOLVE Agreement, they consented to the arbitrator’s authority to decide the threshold question of whether the agreement permits class arbitration."

Second, "Further supporting the conclusion that absent class members authorized the arbitrator to decide whether the arbitration may proceed on a class basis, the RESOLVE Agreement provides that '[q]uestions of arbitrability' and 'procedural questions' 'shall be decided by the arbitrator.'” The Supreme Court has assumed without deciding that "the availability of classwide arbitration is a 'question of arbitrability." 

You can't sue the judge

Every plaintiff's lawyer from time to time fields a potential case intake that seeks to sue the judge. We tell the potential clients that you can't sue the judge. They say that you can because the judge did something outside his jurisdiction. Then you politely tell this individual that you can't take the case. It's not often that this issue reaches the Court of Appeals, but it did in this case.

The case is Deem v. DiMella-Deem, issued on October 30. This case arose from a divorce proceeding. The plaintiff is a lawyer, and his wife is the defendant, along with a family court judge and their marriage counselor. The family court entered an order temporarily preventing Deem from having contact with his children. The lawsuit claims the defendants conspired to violate his intimate association with his children. The lawsuit was dismissed, and the Court of Appeals affirms that dismissal.

Any judge who acts in her judicial capacity cannot be sued over her decisions. That's the rule in Mireles v. Waco, 502 U.S. 9 (1991). When Deem filed this lawsuit against the family court judge, the judge recused herself, adjourned an upcoming hearing to a date two months out, and transferred the case to a different judge. The family court judge also extended the temporary order of protection until the next court date. At that point, Deem amended the complaint in alleging that the TRO extension was outside the family court's judicial capacity.

I guess the argument was that after the family court judge recused herself, she acted outside her judicial authority in extending the TRO. That's a creative argument, but the Court of Appeals (Sullivan, Winter and Pooler) is not buying it. "even assuming that Judge Gordon-Oliver erred in extending the temporary protection order against Deem shortly after recusing herself, any such error falls far short of an act 'taken in complete absence of all jurisdiction.'" We got a Fifth Circuit case that applied judicial immunity for a state court judge who set an execution date after recusing himself. That policy now applies in the Second Circuit.

Second Circuit: Prez has to produce his tax returns

The Second Circuit has ruled that the President produce his tax returns to the Manhattan District Attorney, who is investigating whether various individuals connected to the President committed criminal acts. In ruling this way, the Court of Appeals holds that the President cannot assert any immunity from disclosing these tax records.

The case is Trump v. Vance, issued on November 4. While the DA's office served the subpoena on Trump's accountants, Trump brings the lawsuit. This stems from Trump's extramarital sexual relationships with a Playboy bunny and a pornographic movie actress, and what the Court of Appeals calls "hush money" payments to these women in order to keep these events out of the public eye in advance of the 2016 presidential election.

The Court (Katzmann, Chin and Droney) starts by addressing a dry procedural issue, Younger abstention, a doctrine created by the Supreme Court in the 1970's as a means to prevent the federal courts from interfering with ongoing state court proceedings. Under this rule, federal courts have to abstain from federal lawsuits where a related, ongoing proceeding is unfolding in state court. But the Second Circuit holds for the first time that Younger abstention does not apply when the federal government is trying to invoke the jurisdiction of the federal courts. The Court holds that when the President invokes federal jurisdiction "to vindicate the superior federal interests embodied" in the Constitution. Bottom line is that while there is a grand jury proceeding in state court that is dealing with these possible criminal acts, the federal court has authority to take up the issues raised in this case. So Trump wins that battle.

But he loses the war. Trump asserts presidential immunity in trying to keep his tax returns private. The President invokes "what he described at oral argument as 'temporary absolute presidential immunity,''' which would mean that "he is absolutely immune from all states of state criminal process while in office, including pre-indictment investigation," and that the tax return subpoena "cannot be enforced in furtherance of any investigation into his activities." No one has ever heard of "temporary absolute presidential immunity," and the Court of Appeals tastefully decides a narrow issue, concluding only that "presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President."

There is very little case law that guides this issue, but the Second Circuit relies on United States v. Nixon, decided in 1974, the year President Nixon resigned the presidency to avoid impeachment after Oval Office tape recordings captured Milhous plotting to interfere with a federal investigation into the Watergate break-in, until now the most exciting presidential scandal we ever had. As the Second Circuit sees it, if the Supreme Court in the Nixon case said that Nixon had to turn over the tapes relating to his own conversation with aides and advisors for use in a criminal trial against high-level presidential advisors, then there is no persuasive reason for Trump to object to a grand jury subpoena served on a third-party (the accountants) relating to an investigation that has nothing to do with Trump's presidential duties but instead involves a private rendezvous that predated his presidency.

This is the case, by the way, where Trump's lawyer told the Court of Appeals that, so long as he is President, Trump could not be investigated even if he shot someone on Fifth Avenue. The Court of Appeals does not make reference to that argument in its ruling, but folks, if you are in the Court of Appeals, don't make arguments like this. Hypothetical questions may seem pointless when you're at the podium, but they do give the Court a flavor about the consequences of your legal position. Arguments like this suggest that your client is above the law. What this case confirms is that no one is above the law, not even the President.  

Case of five black Ulster County corrections officers to move ahead

November 2, 2019

KINGSTON – The US Court of Appeals on Friday reinstated a racial discrimination lawsuit filed by five Ulster County corrections officers who claim the county jail was rife with racist comments and abuse from coworkers and supervisors.

The appellate court ruled that a jury must determine if the officers endured a hostile work environment and whether the county is legally responsible for the work environment.

The plaintiffs are Norman James, Tyrone Brodhead, Alphonso Lacey, Pamela Lancaster and Timothy Ross. The racist comments took place in 2007-2008 and 2014-2015, when Paul Van Blarcum was sheriff, prior to the 2016 election of current Sheriff Juan Figueroa.

The Second Circuit Court of Appeals stated, “The record is replete with evidence of racially derogatory language from coworkers and supervisors. There is little doubt that many, if not all, of the comments made – such as the naming of a police K-9 ‘Mandingo Hunter,’ Wenzel’s joke about black men jogging, and Officer Brook’s joke that black officers or ‘niggers’ could not become sergeants — are egregious. Some of these comments, such as the references to Lancaster as ‘Buckwheat,’ were made by a sergeant.” Other evidence included a “colored girl” comment by Sgt. Polacco and use of the words “nigger” and “jigaboo.”

The court observed that “In total, there were at least 12 instances of racial slurs during the 2014-2015 and 2007-2008 period, though there is evidence that some of these comments had also been made previously or were made ‘constantly’ and ‘all the time.’”

The jury may find the county liable for the work environment, the court ruled, because “there is no evidence that after [plaintiffs] reported a number of incidents . . . anyone spoke with the officers who made these comments.” In addition, “while in a limited number of instances [plaintiffs] did not report slurs, County Personnel Director Sheree Cross did learn of some of these incidents. There is no evidence she investigated, and awareness followed by a failure to act can result in a finding of liability.”

The five plaintiffs are represented by Nathaniel Charny, of Charny & Wheeler in Rhinebeck, and Stephen Bergstein, of Bergstein & Ullrich, LLP, in New Paltz.

In a joint statement Charny and Bergstein said, “This decision reminds us that racism has no place in a public facility. The law prohibits racial hostility in the workplace. The racial harassment at the Ulster County Jail was extensive. We look forward to presenting our evidence to a federal jury on behalf of our clients, who have suffered this racism for years.”

U.S. Courthouse security officers have valid due process claims

The plaintiffs in this employment case were security officers who worked at federal courthouses in upstate New York. After they were terminated from their positions, they sued under the due process clause. The Court of Appeals finds they both have a case.

The case is Atturbury v. United States Marshals Service, issued on October 25. One plaintiff worked at the courthouse in Rochester. The other worked at the courthouse in Poughkeepsie, which mostly handles bankruptcy cases. They were both actually employed by a private security company, Akal, which the Marshals Service used for security services at federal courthouses. So you learn something new every day. I thought the security officers worked directly for the U.S. government. They do not. They worked for private firms that contract with the government.

That employment relationship raises questions about whether plaintiffs can challenge their terminations under the due process clause, which only regulates government action, not private action. A Wal-Mart employee has no due process rights, only certain government employees. In an earlier appeal in this case, the Second Circuit stated that "an employee of a government contractor may under certain circumstances have a constitutionally protected property interest in continued employment." That case was Atturbury v. U.S. Marshals Service, 805 F.3d. 398 (2d Cir. 2015). These cases return to the Second Circuit, which now holds that language in the collective bargaining agreement, which says that employees cannot be terminated without "just cause," gives the plaintiffs a property interest in their continued employment, triggering due process protections.

The question now becomes whether the plaintiffs can actually win their due process claims on the merits. The Court of Appeals (Newman, Cabranes and Lynch) says they can. The procedures the Marshals Service used in firing these guys "have thus far not comported with the requirements of due process," the Court of Appeals says. While the plaintiffs were informed of their alleged misconduct that gave rise to Akal's investigations, the Marshal's Service did not explain the reasons for removing them from the Court Security Officer program. That's not due process. And, since there were disputed facts with respect to plaintiffs' cases, they was entitled to "some form of hearing" on those issues. The Marshal's Service must consider their cases anew.

One-dollar strip search verdict is rejected on qualified immunity grounds

This guy sued an Oswego sergeant, claiming the officer subjected him to a manual body cavity search. It took place in the context of felony drug charges. Plaintiff won the trial, but the jury only awarded him one dollar. That may be an empty victory for plaintiff, but the sergeant appeals it anyway, claiming no liability can attach at all because he is entitled to qualified immunity. The Court of Appeals agrees with the sergeant, and the verdict is gone.

The case is Sanchez v. Bonacchi, a summary order issued on October 25. If you read this blog on a regular basis, you know that public officials (including police officers) get qualified immunity from suit if the law was not clearly-established at the time of the incident. Officers are not expected to anticipate how appellate courts in the future will resolve complex constitutional issues, so if there is something funky about the case, the officer gets the benefit of the doubt.

The district court denied the sergeant qualified immunity because he "personally conducted a manual body cavity search of Plaintiff before obtaining a judicial warrant, and because Defendant essentially testified that he knew such conduct violated Plaintiff's rights." Interesting. The officer testified that he knew he was violating plaintiff's rights when he conducted the cavity search. What more could a plaintiff want? (And why would the jury only give plaintiff one dollar for this intrusive violation of his physical dignity? Only the jury can answer that question.)

The problem with the district court's analysis is that is focused on the officer's subjective intent in resolving the qualified immunity question. Qualified immunity is an objective test, not a subjective one. So it is not enough for the officer to "admit" he was violating the plaintiff's rights. The question is whether a reasonable officer would have done the same thing. If the answer is yes, then the officer is immune from suit, no matter what he testified to at trial.

The correct test is "whether a right to be free from a warrantless manual body cavity search in the absence of exigent circumstances and a particularized suspicion that evidence of a crime is secreted inside the body cavity was clearly established at the time of the search, in February 2013." In 2013, the Second Circuit held in Gonzalez v. City of Schenectady that, "although we have repeatedly held that the police may not conduct a suspicionless strip or body cavity search of a person arrested for a misdemeanor," neither the Court of Appeals nor the Supreme Court had extended that reasoning to felony drug arrests. This means that cases like plaintiff's (involving felony drug arrests) were not clear constitutional violations, at least by February 2013.

What it means for plaintiff is that verdict is gone, the one-dollar damages award is gone, his attorneys' fees are gone, and the sergeant ultimately wins the case.

Circuit gives pro se inmate a break

The case involves continuing violations and equitable tolling for an inmate who claims he got lousy medical care while he was incarcerated. The Court of Appeals revives the claim on the basis that plaintiff might be excused for his late filing because he was made to wait for a notary to stamp his lawsuit.

The case is Sides v. Paolano, a summary order issued on October 22. Sides says that in August/September 2012, he was denied adequate medical care. He filed the lawsuit on October 1, 2012, more than three years after the bad medical treatment. Problem: the statute of limitations is three years. The lawsuit fell outside that time-frame. Can plaintiff get around this? The district court said no. The Court of Appeals (Walker, Carney and Koeltl [D.J.]) says yes.

Equitable tolling is God's way of saying that some latenesses can be excused, but only for a compelling reason. Plaintiff says that he needed a notary stamp on his lawsuit before he could file it. He requested the notary at the prison on September 21, 2015, and he got the assistance on September 29, 2015. We call that bureaucratic inertia. It's not like inmates can just walk into a bank for a notary. You are at the mercy of prison staff. Notarizing signatures is not a priority.

State court lawsuits in New York have to be verified. That is not the case in federal court. Why did plaintiff need a notary in the first instance? Sides says he relied on a pro se handbook and a prisoner manual that said complaints have to be notarized. Only injunction applications in federal court need to be notarized, since you have to file an affidavit.

The Court of Appeals says the handbook advice may or may not have been correct. But we have an inmate plaintiff here, and the cases have long held that inmates get some solicitude in dealing with deadlines and other procedural requirements. Since Sides did file his lawsuit within days of the September 28, 2015 deadline, the late filing might be excused. The case is sent back to the district court to determine in the first instance whether plaintiff is entitled to equitable tolling.

Tight handcuffing claim does not survive qualified immunity defense

The Court of Appeals has granted qualified immunity to a police officer who allegedly overly-tightened handcuffs upon an arrestee who suffered permanent nerve damage after unsuccessfully signaling to the officer that the cuffs were too tight.

The case is Cugini v. City of New York, decided on October 25. Plaintiff was arrested on a domestic stalking and harassment charge. She claims the officer cuffed her "very tight," causing her to say "ouch" while her body shuddered. The officer responded, "Don't make me hurt you" and tightened the cuffs further, causing plaintiff to further react, "ow" or uttering a "cry." For the next 40 minutes, plaintiff kept her mouth shut, claiming she was "too scared" to complain any further about the handcuffs.

Here's the question: how does this scenario entitled the officer to summary judgment in this excessive force case? The answer is qualified immunity. Police officers are entitled to immunity if they did not violate clearly-established constitutional rights, as determined by Supreme Court and Second Circuit authority. A right is clearly-established if the facts giving rise to the claim make it clear to any reasonable police officer that the plaintiff's constitutional rights were violated. So a generalized right to be free from excessive force is not enough. You have to show that existing precedent makes it clear the plaintiff's rights were violated in light of the facts known to the police officer at the time of the incident.

The Court of Appeals (Sack, Hall and Droney) does two things here. First, it decides that plaintiff's right to be free from excessive force was in fact violated. Under settled Supreme Court authority (Graham v. Connor [1989]), "a government officer may not intrude upon a person's Fourth Amendment rights by employing a degree of force beyond which is warranted by the objective circumstances of an arrest." Relevant factors include whether the plaintiff was actively resisting arrest, whether she was trying to flee, and the severity of the crime at issue. Second, the Court finds the officer is immune from suit because the law was not sufficiently clear that he was violating her rights.

On the first issue, the Second Circuit states that "A reasonable on the scene should have known that the force used was excessive. A reasonable jury could find that the degree of force employed by Palazzola was, objectively considered, disproportionate and unwarranted under the circumstances," particularly since plaintiff communicated her distress to the police "through her pained utterances and bodily shudders" and the officer threatened her with further harm if she did not stop complaining." The officer then tightened the handcuffs. This ruling helps other excessive force plaintiffs who claim the police applied too-tight handcuffs, as this ruling is now "clearly-established" constitutional law, at least from October 25, 2019 forward.

But this ruling on excessive force does not help plaintiff, because no court had engaged in this precise analysis on the day she was arrested in June 2014. In other words, as to plaintiff's case, the law was not clearly-established in 2014. The Court of Appeals phrases the question this way: "whether, at the time of Cugini's arrest, clearly established law required an officer to respond to a complaint by a person under arrest where, as here, that person exhibited only non-verbal aural and physical manifestations of her discomfort." Well, if you frame the issue that way ...

Prior to this decision, no case had quite held that any plaintiff on these facts suffered a constitutional violation. Yes, plaintiff did make some non-verbal noises as a means to complain about the handcuffs. But, at the time of her arrest, "It remained an open question in this Circuit whether a plaintiff asserting an excessive force claim was required to show evidence that an officer was made reasonably aware of her pain by means of an explicit verbal complaint." Also, "there was no such consensus in federal circuits outside ours whether a verbal complaint was necessary, so we need not -- we cannot -- come to a conclusion as to the consequences of any such consensus had there been one."

Plaintiff wins the battle but loses the war. You may think the Second Circuit sliced the baloney too thin in holding that a reasonable police officer might think he was not violating plaintiff's rights in tightening the handcuffs. But the Supreme Court has been making it more difficult for plaintiffs to survive qualified immunity motions. But, while plaintiff loses the war, the next such plaintiff will get around this particular qualified immunity equation.

Qualified immunity for police officers in excessive force/false arrest claim

If you sue the police for excessive force or false arrest, you have to worry about qualified immunity. There are ways around it, but I see a pattern in the Second Circuit, in which the Court of Appeals dismisses a Section 1983 claim on qualified immunity grounds, even after the district court allowed the case to proceed to a jury. That's what happened in this case.

The case is Calixto v. City of New York, a summary order issued on October 4. Qualified immunity is a legal protection enjoyed only by government defendants who are sued for civil rights violations. If the law was not clearly-established at the time of the violation, the defendants are off the hook even if, with 20-20 hindsight, they violated the plaintiff's constitutional rights. The idea is that close cases are decided in the defendant's favor, since they cannot be expected to know they are violating the law if the case law prior to that date was not sufficiently clear on that precise factual situation. In police cases, this immunity also arises when the police have to act quickly and make split-second judgments that seemed reasonable at the time, at least to a judge.

This was an excessive force and false arrest case. Someone reported that three men had committed a burglary. Plaintiff awoke with the news that her son was involved in an incident on the street, so she went to the scene and saw her intoxicated son holding a long, narrow stick, with other other. people. Then the police show up. Plaintiff told the young men to move aside, using the stick that her son had been holding, to shoo them away. This is how the district court describes what happened next:

As the officers approach the entrance of the residence, plaintiff turns, still holding the stick. In an instant, as seen clearly on the videotape. Officer Rodriguez seizes Ms. Calixto and throws her to the ground before rushing into the building. While Ms. Calixto remains on the ground, the other officers follow in pursuit of her son and his companions. Seconds later the video shows the officers leaving the building with Ms. Calixto's son in custody. After several minutes, newly arrived uniformed officers arrest Ms. Calixto. None of the three named officers—Rodriguez, Cespedes, and Delassantos—are nearby when she is handcuffed by the uniformed officers. Id Moments later. Officer Rodriguez re-enters the video, grabs Ms. Calixto, who is now in handcuffs, and rushes her out of the video's frame in the direction of police vehicles.

In short, plaintiff was thrown to the ground and arrested. The charges were dropped and she sued the police. The district court said plaintiff has a case for both claims (which would allow plaintiff to bring her claims to trial), but the Court of Appeals (Cabranes, Lynch and Droney) reverses, and plaintiff loses the case because the officers have qualified immunity. There will be no trial.

The Second Circuit reminds us that the Supreme Court has repeatedly endorsed qualified immunity as a defense and that "the inquiry must be undertaken in light of the specific context of the case.” The Circuit cites Mullenix v. Luna, 136 S.Ct. 305 (2015), for that proposition. We also know that "qualified immunity is available to all but an officer who, on an objective basis, is either plainly incompetent or knowingly violates the law." Malley v. Briggs, 475 U.S. 335 (1986). These principles kill off plaintiff's case. Here is the reasoning on plaintiff's excessive force claim:

As depicted in the surveillance footage, Rodriguez sprinted towards the doorway at a high speed, with no opportunity to ask Calixto to move. We agree with Appellants that an officer in Rodriguez’s position would have reasonable concerns, such as a suspect escaping or potentially setting a trap for the police, and that Rodriguez’s push of Calixto out of the way when she turned, raised a stick she was holding to eye level, and blocked his way as he rushed to the door, was a reasonable level of force in the specific circumstances presented. Regardless of whether, in hindsight, Calixto actually posed a substantial threat, or intended to impede the officer’s progress, Rodriguez acted reasonably in pushing her and the stick away from his person.

Say goodbye to the false arrest claim, as well. The officers had "arguable probable cause" to arrest her. "Arguable probable cause" is another qualified immunity principle. "The surveillance footage and Calixto’s admissions in her deposition indicate that there is no dispute of any material facts as to whether the police officers had at least arguable probable cause. Rodriguez observed Calixto block his path, and he was present and communicating with the other officers when she was arrested minutes later. The evidence thus makes clear that the defendant officers all would have had a reasonable basis to believe probable cause existed."