Saturday, September 14, 2019

Court of Appeals says Trump must face suit under the Emoluments Clause

The Second Circuit has ruled that New York City business owners can sue the president under the Emoluments Clause, the constitutional provision that says the president (and other federal office holders) cannot "accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or any foreign state." Since this case conflicts with a ruling from the Fourth Circuit, this case is a candidate for the Supreme Court.

The case is Citizens for Responsibility and Ethics in Washington v. Trump, issued on September 13. The plaintiffs own hotels, restaurants and event spaces in New York City. The lawsuit alleges they directly compete with Trump's establishments for foreign, state, and federal government clientele. They also cite statements from Trump "implicitly soliciting patronage of government officials and apparently acknowledging that, in making governmental decisions, he favors governments that patronize his businesses." They also "allege that foreign governments have taken note of, and been influenced by, the message that enriching the President by giving patronage to his establishments earns his favor." The plaintiffs claim they are losing money because Trump is profiting off the presidency.

The Emoluments Clause received little attention until a few years ago, when Trump was elected president. Most of us never even heard of the Emoluments Clause until recently. The contours of litigation under this provision are not clear, including whether you can even sue the president under it. The district court ruled that this dispute is a "political question" that cannot be resolved by the courts, but the president's lawyers for some reason are not defending that ruling on appeal. Instead, they are defending the district court's finding that plaintiffs lack standing to bring this action.

Standing is a concept unique to litigation. Since the Constitution only allows the courts to resolve actual (and not theoretical) disputes, the plaintiffs in any case have to prove they will be directly impacted by the alleged unlawful governmental activity. Over the years, standing has killed off many good lawsuits. Not this one, at least in the Second Circuit (Leval, Droney, and Walker in dissent). Plaintiffs get around the standing rules with affidavits and expert input about how the president has invited foreign governments to use his private facilities, and how those entreaties have affected them financially as his competitors. The Circuit uses the traditional standing analysis as it would any other case, except that it knows this case involves the president. My guess is the Court proceeds this way to signal that the president is not above the law, and that if traditional legal principles require him to defend himself in court, so be it.

In dissent, Judge Walker notes the Emoluments Clause has never been directly litigated since the Constitution was drafted in 1787, and that nothing in the Clause "addresses competition in the marketplace or the conduct of business competitors generally." Nor can the Clause "be considered sweeping anti-corruption provisions." Judge Walker also addresses the elephant in the room: "this case is deeply political and thus finds itself in an area where federal courts ought to tread lightly. President Trump was democratically elected by the American people -- and he was elected with his business holdings and brand prominence in full view." He adds, "Whether the courts should properly play any role pertaining to that relationship [between the president and Congress] in the context of the Clauses will have to determined in the future." Ultimately, Judge Walker finds plaintiffs have no standing.

This case is heading to the Supreme Court. As I noted the Fourth Circuit has reached the opposite conclusion on the same issue, which makes this case certworthy, which is Supreme Court-speak for worthy of a certiorari petition to the Court asking the Justices to take on the case.

Friday, September 13, 2019

Muslim inmate wins religious discrimination appeal

In a resounding win for a Muslim inmate who claims prison officials violated his religious freedoms in denying him proper meals, the Court of Appeals holds the plaintiff can prevail at trial on both his religious discrimination and retaliation claims.

The case is Brandon v. Kinter, issued on September 10. Inmates do have constitutional rights, though they are watered down in the interests of maintaining prison security and efficiency. Plaintiff claims the jail made him eat port on dozens of occasions. The jail says the pork means happened only about ten times, not frequently enough to substantially burden plaintiff's sincere religious practices. The district court said there were only ten offending meals, not enough to violate the First Amendment's Free Exercise Clause.

The Court of Appeals (Calabresi, Walker and Chin) says the jury may find plaintiff was given a pork diet on 63 occasions over the course of about seven months. If true, then plaintiff can win the case. The Court of Appeals held in 1975 that the provision of food cannot unconstitutionally burden inmate rights. More than 60 meals is enough for plaintiff to win. But the Court of Appeals takes things further, holding that even if plaintiff was given pork on ten occasions, he can still win the case. The Court reviews a line of cases holding that even a "relatively small number of violative incidents did not prevent us from finding that a prisoner's religious beliefs were substantially burdened." In reaching this holding, the Court cites cases dating to the 1970s, finding that even a single violation can burden religious freedoms on jail. While the government says ten incidents are not enough, that makes the Second Circuit uncomfortable. The Court says:

For Muslims who follow Islamic dietary laws, consuming pork is a sin at any time, regardless of whether the consumption occurs during a holiday or not. The Quran expressly commands against it. See, e.g., Quran 2:173. Accordingly, when Muslim inmates are served meals containing pork, they are faced with the choice of disobeying the commands of their faith or not eating. We have correctly recognized that it is not generally the role of courts to distinguish between important and unimportant religious beliefs. And we should be reluctant to draw lines that would distinguish and require us to give more importance to some religious commands (such as fasting during Ramadan) over others (such as abstaining from the consumption of pork). The defendants give us no good reason to make such distinctions here. Indeed, it would be absurd to require that courts, in order to determine what constitutes a substantial burden, be made to decide the number of violations of a particular religious tenet that make a sin grievous. Yet that is what the defendants’ arguments would force us to do.
The Court also engages in discussion about personal involvement of the defendants. In Section 1983 cases, you have to name the wrongdoers as defendants. In Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), the Court of Appeals set forth a series of standards to resolve when individuals may be sued, including supervisors. There has been some debate in the federal courts over whether portions of the Colon test survive the Supreme Court's ruling in Ashcroft v. Iqbal (2009), but this ruling does not address that issue, maybe because no one briefed it.

The Court also says the jury may find that defendants were deliberately indifferent to plaintiff's rights. We all know that is the standard for these cases. But the Court of Appeals says there may be argument that Section 1983 cases can be won upon a showing of negligence, as the statute contains no state-of-mind requirement, and the Supreme Court said in Daniels v. Williams, 474 U.S. 327 (1986), that "depending on the right, merely negligent conduct may not be enough to state a claim" and declined to "rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care." The Second Circuit has never squarely addressed this issue, as no one seems to brief that issue, and it was not briefed in this case. But that issue remains an open question for future litigants. Hey jailhouse lawyers, are you aware of this?

Wednesday, September 11, 2019

Wrongful death verdict for the police is upheld despite questionable jury charge

It really ends with the jury. When the verdict comes in and the losing side vows to appeal, those efforts usually fail. Appellate courts do not like to upset jury verdicts unless something went horribly wrong at trial. It is not enough to say you had better evidence than the losing side, as the jury is allowed to believe what it wants. The best way to challenge an adverse verdict on appeal is by attacking the jury instructions. The trial judge has no discretion to issue bad instructions. That was the strategy in this appeal.

The case is Hill v. Quigley, a summary order issued on September 5. This was a wrongful death trial. The decedent's mother brought the case. When the police tried to arrest Tyjuan Hill during a prostitution sting operation, Hill ran away and the officers tackled him, causing a struggle. Quigley was able to handcuff one of Hill's wrists, but not the other. Quigley said (the jury must have believed) that Hill pulled out a handgun and pointed it at the police. Quigley shot Hill in the back of the head. Hill lost the case, hence this appeal.

Most appellate judges used to sit as trial judges, so they appreciate the jury process and recognize that only the jury may resolve conflicting accounts. That's why most appeals from adverse verdicts fail. We tell the jury they are the ultimate factfinders. But the trial judge can mishandle the trial by making bad evidentiary rulings or issuing a foul jury charge. Hill's lawyer on appeal knows this, so he focused on the jury charge dealing with excessive force. The police are allowed to use excessive force if they reasonably perceive they or someone else is facing a significant threat of death or serious physical injury. As it happens, the instruction was problematic, allowing plaintiff's appellate lawyer to invoke Dancy v. McGinley, 843 F.3d 93 (2d Cir. 2016), which said it was prejudicial error for the judge in that excessive force case to tell the jury that "to impose liability, [the jury] was required to find that Williams ‘acted intentionally or recklessly’ rather than ‘merely negligent[ly]’ in performing the acts alleged.” That instruction was confusing "because a plaintiff alleging excessive force need not prove that the officer 'intended the results of his actions or consciously disregarded their consequences.'” (I helped brief the appeal in Dancy).

The instruction in this case was similar to the bad instruction in Dancy. But Hill loses the appeal because the bad instruction was "harmless error." The Second Circuit (Hall, Livingston and Restaini [on loan from the Court of International Trade) says "In Dancy, the instructional error was not harmless because the police officer’s lawyer suggested at trial that the broken jaw was unintentional, placing intent at issue. Here, intent was not at issue at trial. The defense theory was that the use of lethal force was justified—not that the shooting was accidental. Quigley described the shooting as an intentional act. Thus, to the extent the District Court failed clearly to convey that Quigley could be held liable even if he unintentionally caused Tyjuan’s death, that error is harmless." See how hard it is to win the appeal from an adverse jury verdict?

Monday, September 9, 2019

Inmate loses appeal under Prison Litigation Reform Act

Under the Prison Litigation Reform Act, inmates cannot file a lawsuit unless their file an internal grievance at the correctional facility. Once that grievance is denied, the inmates can then bring the lawsuit. The idea is that the grievance procedure may reduce the number of inmate lawsuits because the jail might correct the problem without litigation. It all sounds simple, but this case shows that it's not always that simple.

The case is Grafton v. Hesse, a summary order issued on August 29. Plaintiff says he wanted to file a grievance, but the jail did not make the process available to him. Here is the law on that issue, from the Supreme Court's ruling in Ross v. Blake (2016):

there are three circumstances in which an administrative remedy is unavailable: (1) “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the remedy is “so opaque” that “no ordinary prisoner can make sense of what it demands;” and (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”
Plaintiff invokes the Ross exceptions because prison staff intimidated him and "put him and his co-plaintiffs 'under threat of retaliation' due to the grievances they had filed challenging prison conditions in the medical unit." This sounds like something that might happen in jail, but the Court of Appeals (Hall, Livingston and Restaini [on loan from the Court of International Trade]) is not buying it. Without affirmative measures taken by prison staff to thwart the grievance process, the inmate cannot claim that threats like this prevented him from filing a grievance. That's the rule in Ruggiero v. County of Orange, 467 F.3d 170 (2d Cir. 2006), a case that I briefed (and lost). Since "Grafton and his co-plaintiffs, in their complaint, pleaded that they had filed grievances subsequent to the staff members’ threats," he was never actually prevented from filing a grievance." While plaintiff also argues that prison staff "were consistently unwilling to provide relief and that the grievance system was a 'dead end with him being asked to supply documents that he did not have and grievances not being collected and processed as required," that argument also fails. The Court reasons:

Grafton has not provided any evidence regarding the outcome of his past grievances and indicating if or how other NCCC inmates’ grievances had been resolved. The evidence Grafton does provide—several of his past grievances containing the notation “Grievance Accepted”—undermines his argument that prison staff had made the prison grievance system a dead end by not collecting and processing grievances as required.

Thursday, September 5, 2019

Megan's Law home visits do not violate Fourth Amendment

The Court of Appeals has ruled that the County of Suffolk may legally authorize a private entity to visit the private homes of registered sex offenders without a warrant in order to verify their addresses. In doing so, the Court applies the "special needs" exception to the Fourth Amendment.

The case is Jones v. County of Suffolk, issued on September 4. Megan's Law was enacted in the 1990s to require that sex offenders register their addresses with the government. They also have to update the government if they change their addresses. This allows members of the community to know if any offenders are living in the neighborhood. Jones brought this lawsuit challenging these warrantless visits under the Fourth Amendment.

The Court of Appeals (Droney, Raggi and Cabranes) upholds the program. The Fourth Amendment is vague on its face, stating only that the government cannot undertake unreasonable searches and seizures. What is "unreasonable?" The answer to that question lies with the judges who interpret the Constitution. The Supreme Court has handed down reams of case law over the years on that question. One line of cases says the government can conduct a warrantless search under the "special needs doctrine," which says the search is legal if the government has a "substantial" interest such that the Fourth Amendment's "individual suspicion" requirement need not apply. The warrantless search is also legal under the "special needs doctrine" if the government's objective is "distinct from the ordinary evidence gathering associated with crime investigation." Cases uphold searches under this doctrine are rare.

But this is one of those cases that uphold the search under the "special needs doctrine." While the plaintiff argues that these searches are improperly intended to find incriminating information, the Court of Appeals disagrees. The County says that, despite thousands of home visits, the searches have only resulted in a handful of arrests of sex offenders who did not register the correct address. "The record does not support an immediate objective of the program was 'ordinary evidence gathering associated with crime investigation.'" In addition, the information transmitted by the private groups who conduct these searches did not constitute per se evidence of a crime. The Court concludes, "the program advances the government's substantial interest in reducing sex offender recidivism by improving the accuracy of the registry. Thus, the program serves a special need 'beyond the normal need for law enforcement.'"

Thursday, August 29, 2019

Connecticut Chabad is prevailing party in religious discrimination dispute, entitling it to attorneys' fees

If you handle federal civil rights claims, you know about fee-shifting. In most such cases, the losing defendant has to reimburse the prevailing plaintiff for his legal fees, even if the plaintiff's lawyer took the case on a contingency fee basis. When that happens, the plaintiff's lawyer recovers the legal fees he would have earned had the client been able to pay him. The reason for this arrangement is to encourage lawyers to take on meritorious civil rights cases. This case explores some of the wrinkles in the fee-shifting statutes.

The case is Chabad Lubavitch of Litchfield County v. Litchfield Historic District Commission, issued on August 14. The plaintiff is a religious organization that wanted to build an addition to its building to accommodate the rabbi's family and the needs of the community. The district court ruled that the defendant violated the Religious Land Use and Institutionalized Persons Act, a federal statute that protects religious liberty. The plaintiff got a mandatory injunction ordering the defendant to grant the plaintiff's Certificate of Appropriateness, a planning board concept that allows a community member to accomplish a construction or planning objective. The court ordered Chabad to submit an amended COA application that would remove the second story from its proposed plans, based on the court's determination that Chabad would not be substantially burdened by having its rabbi live hear the Chabad House. Chabad did not submit that amended plan. Instead, it moved for attorneys' fees as the prevailing party in the case. The defendant opposed that application, claiming that it had ultimately decided to give Chabad permission to proceed with its modified plan. Chabad got half of its fees, and the defendant appeals.

The Court of Appeals (Newman, Hall and Chin) finds that Chabad is a "prevailing party," which entitles it to attorneys fees. It does not matter that defendant changed its position after the district court entered judgment for Chabad. It is the favorable judgment that entitles Chabad to fees, not post-judgment events. And, the fact that Chabad did not submit a revised plan post-judgment does not affect its entitlement to fees. The Court writes, "A person need not claim the winner's prize to be a winner; it need only win the event." Chabad gets over $600,000 in attorneys' fees.

It is not all good news for Chabad. While Chabad wanted approximately $1.2 million in fees, the district court cut its fees by 50% because Chabad did not win everything it sought in the litigation. That is a drastic reduction, but the district court has discretion to do that. The Court of Appeals is not breaking new ground here. Generally, the appellate courts will not seriously second-guess the trial court's attorneys' fees rulings.

Wednesday, August 28, 2019

Murder defendant wins new trial in habeas proceeding

I am fascinated by habeas corpus cases where the federal court grants the criminal defendant a new trial, because it means the state court convicted someone and sentenced him to jail for unconstitutional reasons. The state court process was broken and the federal system fixed it. In this case, the defendant was convicted of murder and has already spent quite some time in the big house, but the Second Circuit finds the state trial court denied him a fair trial.

The case is Scrimo v. Lee, issued on August 20. This is a sad story that results in a murder. It involves three people: the victim, Ruth Williams, strangled to death in her apartment; Paul Scrimo, who was convicted of murder; and John Kane, who was present at the time of the murder. At trial, Scrimo pointed the finger at Kane, who in turn said that Scrimo strangled Williams with a wire. The story also involves drugs (Kane was accused of being a cocaine dealer), gratuitous insults (the prosecution said Scrimo killed Williams because she rejected his sexual advances and said Scrimo had a "fat and ugly" wife) and Kane's DNA under Williams' fingernails, the byproduct of Williams performing unconsummated oral sex on Kane. The fourth player in this story is the state court judge who prevented Scrimo from putting on evidence that Kane was a drug dealer and that he may have killed Williams because they had a "drug relationship" and a drug deal went bad. The trial judge prohibited this evidence, finding that Scrimo was merely attacking Kane's credibility. Kane was a chief witness against Scrimo. Since the murder happened in 2000, if Scrimo is actually innocent of this crime, he has spent a long time in jail for something he did not do.

The Appellate Division affirmed and did not even address the issue that wins Scrimo a new trial in the Second Circuit, and the New York Court of Appeals declined to take up the case. As a last resort, Scrimo filed a habeas petition in the Eastern District of New York, which said Scrimo's conviction was not a constitutional violation. The Second Circuit was really the final stop for Scrimo, and the Court (Jacobs, Newman and Droney) finds the criminal court denied defendant a fair trial because he was disallowed from putting on relevant witnesses who could have proven that Kane had a motive to kill Williams (over a drug deal). This holding stems in part from the Second Circuit's recognition that the case against Scrimo was fairly weak to start with, and entirely circumstantial. Ultimately, defendant wins the habeas petition because the testimony about Lee's drug dealing "went to the obvious and decisive question of whether Kane committed the murder rather than Scrimo." Describing bad oral sex in the most lawyerly fashion imaginable, the Second Circuit states, "Scrimo's defense was that Kane was a drug dealer who strangled the victim over a drug deal. The jury could have inferred non-payment, or payment in kind (oral sex) that failed to give satisfaction."

This was not harmless error. As noted above, the case against Scrimo was weak, and the forensic evidence against him was inconclusive, "though it pointed in Kane's direction," probably because of the DNA evidence. The sole motive at trial for Scrimo killing Williams -- chivalry -- "was weak if not riseable." And, Judge Jacobs writes, "the state's supplemental explanation -- that Scrimo committed the murder because he was 'trying to get lucky,' and failed -- lacks firm evidentiary support."

Monday, August 26, 2019

Buffalo hospital may be liable for failing to provide interpreter for hearing-impaired patient

The Court of Appeals has reinstated a disability discrimination case filed by a hearing-impaired woman who was denied interpreter services during her hospital stay.

The case is Biondo v. Buffalo General Medical Center, issued on August 19. Plaintiff was born deaf and has limited reading skills. She also cannot lip-read well and has unintelligible speech. She went to the hospital after experiencing several fainting episodes. While plaintiff and her husband (who has no training in American Sign Language) asked for an ASL interpreter, all she got were false promises, and plaintiff underwent medical procedures without an interpreter. Under hospital policy, staff must inform patients of their right to free services for the hearing-impaired. As a whole, the policy for hearing-impaired patients is extensive. Of course, the policy only works when someone at the hospital follows it.

The case was dismissed summary judgment because the trial court said plaintiff could not show deliberate indifference to her medical needs. Under the Rehabilitation Act of 1973, a plaintiff must prove deliberate indifference, as follows: "an official who at a minimum (1) has authority to address the alleged discrimination and to institute corrective measures on the [hospital's] behalf; (2) has actual knowledge of discrimination in the [hospital's] programs and (3) fails to adequately respond. The question here is whether the staff who ignored plaintiff's requests were deliberately indifferent to her needs. The Court of Appeals (Jacobs, Leval and Furman [D.J.]) notes that staff knew about plaintiff's need for the ASL accommodation, as plaintiff and her husband had repeatedly asked nurses for an interpreter. There is also no dispute that the hospital did not take action in response to these requests even though doctors and nurses had authority to call for an interpreter. The question now becomes whether these people who blew off the plaintiffs' requests were "officials" whose indifference could render the hospital liable.

At this point in the case, it's not looking good for the hospital. So it relies on an Eleventh Circuit case, Liese v. Indian River County Hospital District, 701 F.3d 334 (11th Cir. 2012), that says an official under the Rehabilitation Act is "someone who enjoys substantial supervisory authority within an organization's chain of command so that, when dealing with the complainant, the official had completed discretion at a 'key decision point' in the administrative process." The Second Circuit will not adopt that narrow legal standard, as it is unspecific and does not help in cases where the defendant facility is huge and patients and visitors do not interact with a supervisor, much less know how to find one. But the Second Circuit adopts the Eleventh Circuit's view that an "official" or "policymaker" is someone who has some "discretion at a 'key decision point' in the administrative process." Under that standard, even nurses can be "officials" or "policymakers." Since the jury may find that the failure to provide plaintiff with an interpreter was not merely negligent (for which there is no liability) and that it was instead deliberately indifferent, plaintiff can win at trial, and summary judgment against her is therefore reversed.

Friday, August 23, 2019

Plaintiff loses sexual harassment and retaliation appeal

This sexual harassment case involves a woman who was terminated from AutoZone after she complained about a hostile work environment based on gender. Both her discrimination and retaliation claims were dismissed by the district court, and the Court of Appeals affirms, providing clarity on when someone is a supervisor under Title VII such that his discriminatory actions are automatically imputed to the employer.

The case is Bentley v. AutoZoners, LLC, issued on August 19. After plaintiff complained about Valentin's sexist comments in the workplace, management undertook an investigation. Plaintiff was then fired a month later. While plaintiff claims the termination was in retaliation for reporting the harassment, her claim fails. The employer discovered that plaintiff had directed a crude and vulgar remark toward Valentin. While plaintiff claims her termination was an overreaction, and she cites a Seventh Circuit case holding that an employer cannot "swat[] a fly with a sledgehammer" by terminating someone for eating another employee's potato chips, the Court of Appeals (Raggi, Winter and Cabranes) says this is not that case. "The remark Bentley directed at Valentin was extremely crude and would not be tolerated in any workplace outside, perhaps, of a locker room." (Plaintiff told Valentin he "need[ed] to get your dick sucked"). Her termination for this reason is not a pretext for discrimination.

Plaintiff also brings a hostile work environment case, based on Valentin's repeated sexist comments that women are "lazy" and should be home baking cookies. Plaintiff argues the employer is strictly liable for Valentin's comments because he was a supervisor. That argument has some facial plausibility. The Supreme Court has said that supervisory sexual harassment is automatically imputed to the employer. But it has also limited the definition of "supervisor," holding in Vance v. Ball State University, 570 U.S. 421 (2013), that "the ability to direct another employee's tasks" is not enough to make him a "supervisor" under Title VII, and that he is a supervisor only "when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significant responsibilities, or a decision causing a significant change in benefits."  The "hallmark of the tangible employment action thus used to identify a supervisor is its potential to 'inflict economic injury.'"

Under that narrow definition of "supervisor," Valentin was not a supervisor, even though he had authority to oversee plaintiff's day-to-day performance of assigned tasks. Valentin did not have power to take tangible employment actions that could have inflicted direct economic injury. While Valentin threatened to cut plaintiff's hours, to send her home and even to fire her, "there is no evidence that the employer had actually empowered Valentin to take such actions, and he never took such actions," or any actions that diminished Bentley's or any other employee's earnings. Plaintiff does point to deposition testimony from a district manager that Valentin had "the authority to discipline Ms. Bentley if the circumstances warranted it." But this district manager also testified that Valentin could not formally discipline Bentley, alter her hours or change her compensation.

Since Valentin was not a supervisor, the only way plaintiff can win her sexual harassment case is by showing that management had negligently handed her complaint about the working environment. But there is no evidence of that, because the only reasonable inference is that plaintiff reported the harassment in August 2014, and not sooner (as set forth in this blog post) which prompted an immediate investigation that resulted in Valentin's termination.

Thursday, August 22, 2019

Plaintiff's contradictory evidence in sexual harassment case gives the employer summary judgment

Every few years, the Court of Appeals issues a ruling that reaffirms the principle that a plaintiff cannot create an issue of fact for trial if her deposition testimony (or other sworn evidence) seriously contradicts prior submissions in the case. It is not enough to say these contradictions simply create a credibility issue for the jury. In cases like this, the Second Circuit will make that credibility determination on its own. That's what happened in this case.

The case is Bentley v. AutoZoners, LLC, issued on August 19. This is a sexual harassment case. Plaintiff worked for AutoZone, an auto parts outlet. A co-worker, Valentin, repeatedly made sexist comments to plaintiff, such as women are "lazy" and should be home "baking cookies." The Court of Appeals finds that Valentin was not plaintiff's supervisor under Title VII but a mere co-worker, which means the employer is not liable unless it knew or had reason to know of the hostile work environment but negligently remedied it. (If Valentin were plaintiff's supervisor, the employer would be vicariously liable for the harassment but could assert the Faragher/Ellerth affirmative defense that it took reasonable efforts to prevent and remedy the harassment).

Plaintiff testified at her deposition that she repeatedly reported Valentin's sexist remarks to Human Resources from January through March 2014. None of this sworn testimony was corroborated, however. But in May 2014, plaintiff sent a text message to HR about Valentin's obnoxious comments, though that text said nothing about sexual harassment and instead complained about his "ridiculous" and dishonest behavior. Plaintiff gave HR a written statement about the harassment in August 2014; this statement made explicit reference to the hostile work environment. After HR investigated the complaint, Valentin was fired. As a result of this investigation, plaintiff was also fired, for making a crude and vulgar remark to Valentin.

In order for plaintiff to have a case against the employer under Title VII, she had to show that it knew about Valentin's sexist work environment prior to August 2014. Plaintiff did testify that she told management about this prior to August 2014, but that is not enough to survive summary judgment. The Court of Appeals (Raggi, Winter and Cabranes) says that "Bentley's deposition testimony on this point is so compromised and contradicted that it cannot raise a genuine issue of fact as to notice." This is an extraordinary holding, but the problems with plaintiff's sworn "notice" evidence is as follows:

1. While plaintiff originally testified that she routinely sent HR contemporaneous text messages reporting Valentin's sexist statements from January 2014 forward, she recanted this testimony when confronted with the actual text messages which did not complain of sexist comments.

2. When HR met with plaintiff in August 2014 after she submitted a written statement about the work environment, HR asked, "Did you report these comments?" Plaintiff answered, "no." While plaintiff explained that she understood HR's inquiry to be asking whether she had reported the sexist comments to her store manager, the Court of Appeals is not buying it, deeming plaintiff's explanation "hardly plausible." The question from HR was not limited to plaintiff's manager, and the HR representative, Altunes, was the very person to whom plaintiff claimed to be reporting the sexist comments, such that plaintiff should have (but did not) answer that question by reminding Altunes that she had complained directly to Altunes.

3. Plaintiff's complaint as well as her administrative charge of discrimination to the Connecticut Human Rights Commission "makes no mention of reporting these comments to anyone in AutoZone management before August 2014."

The Court of Appeals concludes, "Bentley cannot rely on her deposition testimony to raise a genuine issue of fact about giving AutoZone notice of Valentin's sexist comments before August 2014 because that testimony is inescapably and unequivocally contradicted by her own sworn and written statements, and Bently offers no plausible explanation for the multitude of contradictions."

Years ago, contradictions like this would have been dumped in the jury's lap. The trial judge would have thrown up his hands and decided these conflicting accounts represent the kind of credibility problem that should be resolved at trial. But I have seen the Court of Appeals take that issue away from the jury in extreme cases, when the plaintiff's various accounts are so contradictory that the Court of Appeals deems the testimony implausible. The Second Circuit probably thinks the plaintiff would be destroyed on cross examination and there is no way for her to win the trial. The reasoning in this case will likely prompt defense lawyers to find ways to argue that a plaintiff's deposition testimony is not always enough to avoid summary judgment, which means the plaintiff (and her attorney) must ensure that prior pleadings, including EEOC filings, are consistent and leave no opening for arguments like this.

Monday, August 19, 2019

Exigent circumstances allow the police to enter the house without a warrant

The Grateful Dead once sang, "if you've got a warrant, I guess you're gonna come in." That may be true as far as it goes. The Fourth Amendment says the police cannot search your property (including your home) without a warrant signed by a judge based on probable cause. But the courts have carved out exceptions to the warrant requirement, such as when exigent circumstances require the police to come in without a warrant to deal with whatever chaos or lawbreaking would make it impossible to get a signed warrant.

The case is Molina v. City of Elmira, a summary order issued on August 7. This case went to trial on the plaintiff's search and arrest claim. Under Second Circuit law, in determining if a warrantless search is legal, we consisder:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause ... to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.
The police entered Molina's property because of a "single, hectic incident involving a loud, late-night domestic dispute." Here is how the Second Circuit (Jacobs, Carney and Bianco) summarizes that night:

Testimony at trial described the circumstances at Molina’s home on the night in question as a single, hectic incident involving a loud, late-night domestic dispute between Molina’s inebriated son, Junior, and his ex-girlfriend, who lived in the adjoining home, and Junior’s escalating threats against her; attempts by Junior to flee and physically resist arrest; Molina’s intervention in the attempted arrest, in which he shouted at, punched, and shoved the arresting officer; a dog attack on one officer and tasering of the dog by another; and the eventual arrests of Junior, Molina, and another relative who lived next door—all in a short period of time. 
 This will justify a warrantless entry, the Court of Appeals held, affirming the district court's post-trial ruling that "Junior’s level of intoxication, his escalating threats towards his ex-girlfriend including threats to harm or kill her, defendants’ lack of success in defusing the situation through verbal requests, and the concern for the ex-girlfriend’s safety thereby created" constituted exigent circumstances.

We also have a Batson challenge, which alleges that the government used a peremptory challenge to strike an Hispanic juror. The trial court rejected plaintiff's Batson argument on this point, and the Court of Appeals rules the district court's determination was not an abuse of discretion. It seems the government struck the only Hispanic juror from the panel. The government said it did so because the potential juror's son was arrested. But, plaintiff notes, the government did not strike a white juror whose son "had a similar life experience that may have created bias against police." What was the difference between the Hispanic and white juror that allowed the district court to credit the government's claim that it struck the Hispanic juror for legitimate reasons?

Defendants’ counsel explained to the District Court that he struck the minority panelist because, unlike the Caucasian panelist, the minority panelist seemed to believe that his son’s arrest was not legitimate, and the District Court credited that explanation. More specifically, in reporting that his son was arrested for breaking and entering, the minority panelist made statements suggesting that he doubted the validity of the charge and might have taken the arrest personally, including: “I realized you can’t walk through a door even though it was open,” “[w]e couldn’t prove it or disprove it,” “[w]e had to make restitution,” and, with regard to that restitution, that “Dad [paid.]” By contrast, the Caucasian panelist stated that his son had been arrested several times because his son had a drug problem that had been going on for years. He noted that, though he was initially upset by a warrantless entry onto his property to speak with his son, he later understood the actions of the officers in the context of his son’s drug problems.
That distinction between the jurors -- the Hispanic juror was still angry over his son's arrest and the white juror is no longer upset -- was enough for the trial court to find the government did not offer a noncredible reason in striking the Hispanic juror.

Friday, August 16, 2019

How to win a Title VII case involving false sexual harassment allegations

Does an employee have any rights when he is unfairly accused of sexual harassment? Few cases address this issue. In this case, the Second Circuit provides some guidance, finding that the plaintiff, a former Hofstra University employee, states a claim for sex discrimination in the wake of a student's harassment claim.

The case is Menaker v. Hofstra University, issued on August 15. Plaintiff coached the womens' varsity tennis team. A student, Kaplan, asked plaintiff about her athletic scholarship, claiming that plaintiff's predecessor had promised to increase her scholarship. Plaintiff said he knew nothing about this, ultimately determining there was no record of such promise and that her scholarship would not be increased that year. This led to an irate and threatening phone call to plaintiff from Kaplan's father. After Kaplan filed a Title IX sexual harassment claim against plaintiff, Hofstra fired plaintiff even after he insisted the allegations were provably false and the university summoned him to important meetings on the charges without telling him in advance the purpose of the meetings. Plaintiff also alleges the university did not follow its investigative procedures in firing him, i.e., it did not interview his witnesses.

For Rule 12 purposes, Plaintiff has a case under Title VII for sex discrimination. This ruling provides a good summary of the legal standards guiding motions to dismiss under Title VII, reiterating the pro-plaintiff language from Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). The Court of Appeals also extends the reasoning in Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), which said students may sue their colleges under Title IX for sex discrimination if they are disciplined because of their gender. Doe now applies to Title VII cases against universities. Here is the standard:

Doe v. Columbia stands for the general principle that where a university (1) takes an adverse action against a student or employee, (2) in response to allegations of sexual misconduct, (3) following a clearly irregular investigative or adjudicative process, (4) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances provide the requisite support for a prima facie case of sex discrimination.
Plaintiff has a claim because he has plausibly alleged that Hofstra faced some pressure to react more forcibly to allegations of male sexual misconduct in light of an Obama administration directive to that effect and a Department of Education investigation into Hofstra's possible mishandling of sexual misconduct claims, as well as internal criticism within the institution for the same. In addition, plaintiff alleges that Hofstra committed procedural irregularities in handling the allegations against him, further evidence of an intent to discriminate, as the defendant did not interview his witnesses and he was terminated even though, he claims, the university knew that at least one of the allegations against him was false and believed the complaint was a "ploy" by the student to retaliate over the scholarship denial. Plaintiff also alleges the university disregarded other procedures set forth in its policy for investigating these allegations.

We also got some "cat's paw" discussion. The Court of Appeals wants the district court to think about the cat's paw on remand, which involves an employer making an adverse decision based on a biased agent somewhere along the decisionmaking chain influencing that decision for discriminatory reasons. In that scenario, the relevant intent is that of the discriminatory agent, not the final decsionmaker. The employer is liable if it knew or should have known of that discriminatory intent. The appellate court says there may be a cat's paw issue because Kaplan accused plaintiff of sexual misconduct, which "suggests Menaker's sex played a part in her allegations." In addition, Kaplan's intent may be imputed to Hofstra because "the discriminatory intent of a student‐athlete may also be imputed to a university where that university exercises a 'high degree of control over the behavior' of the student‐athlete and negligently permits her discriminatory conduct or effectuates her discriminatory intent." Hofstra did have that control over Kaplan's academic enrollment and scholarship, and it also controlled the complaint process by which she effected her discriminatory intent. Along with the procedural irregularities, "a district court could plausibly conclude that
Hofstra was negligent or reckless in acting on Kaplan’s allegations."

Thursday, August 15, 2019

Court of Appeals upholds various reductions in attorneys' fees award

Attorneys' fees are bread and butter of a civil rights lawyer's practice. Many of the cases are taken on contingency, so the lawyer does not get paid until the case settles or prevails at trial. If the plaintiff wins the trial, the parties then litigate the attorneys' fees award, and that often becomes a second litigation as the parties dispute whether (1) the winning attorney deserves compensation for all the time she spent on the case or (2) if counsel should recover any fees at all. This case explores some of those issues. In the end the plaintiff (and her lawyer) loses the arguments. While counsel in this successful case gets some money, he does not get all the money that he wanted.

The case is Lilly v. City of New York, issued on August 14. After plaintiff filed this police misconduct case, the City served a Rule 68 offer which said it would settle the case (and have judgment entered against the City) in the amount of $10,000.01 plus reasonable attorneys' fees incurred to the date of the Rule 68 offer. Plaintiff accepted the offer and moved for attorneys' fees, including fees for the attorneys' fees motion. We call that "fees on fees" as the motion for fees is normally recoverable as part of the attorneys' fees award. After the district court issued its ruling, determining in part that plaintiff's counsel was entitled to fees on fees, everyone appealed.

The Court of Appeals rules as follows:

1. While plaintiff's lawyer wanted $600 to $650 per hour for his work on the case, the district court only awarded him $450, still good money in the Southern District of New York, but not counsel's usual rate. The Second Circuit (Droney, Walker and Leval) says the trial court did not abuse its discretion in reducing the hourly rate for this case because this was not complex matter but, instead, "a simple, garden variety" civil rights case. The Second Circuit upholds this reasoning on authority of Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008):

It was entirely appropriate for the district court to consider the complexity of a matter because a reasonable paying client would consider the complexity of his or her case when deciding whether an attorney’s proposed hourly rate is fair, reasonable, and commensurate with the proposed action. The district court’s decision to consider both [attorney] Rothman’s experience and the garden-variety nature of the litigation, which “lasted less than 10 months, required no depositions, and involved no substantial motions or briefings” or appearances before the district court, was consistent with our direction for district courts, “in exercising [their] considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney’s fees in setting a reasonable hourly rate.”
This may be the first time the Second Circuit has held that the hourly rate may be lowered if the district court thinks the case is a simple one. But what is a "simple case"? Proving a civil rights violation is never really that simple. And should that make a difference in the hourly rate? The Court's reference to a "reasonable paying client" is mostly a hypothetical, as most civil rights plaintiffs cannot pay their way in the first instance. Will this reasoning dissuade lawyers from taking non-complex cases? These are questions that I cannot answer.

2. The Second Circuit further holds that the district did not abuse its discretion in awarding counsel a lower hourly rate for clerical tasks, like sending faxes, printing documents and the like. This argument comes up a lot in fee litigation, but I think this is the first the Second Circuit has squarely addressed it. The Court says non-lawyerly rates are appropriate for non-legal work in the office because the mythical "reasonable paying client" would not agree to pay her lawyer the full rate for ministerial, office tasks. While Lilly's attorney said this reasoning is unfair because he does not have a support staff and has to do everything himself, that does not persuade the Court of Appeals to award a higher rate for these tasks, as these duties are still clerical, not legal.

3. The Rule 68 reasoning is also a case of first impression. Fee litigation is funny because when the defendant vigorously opposes the fee application, plaintiff's attorney can defend the application in reply papers that will complete the motion. That work is compensable under the attorneys' fees statute, as it helps the plaintiff to enforce the judgment and attorneys' fees are an integral part of civil rights litigation. Work expended on the reply papers may be recoverable under the fee-shifting statute, with the end result that plaintiff may recover through the reply papers whatever amounts defendant's counsel was able to otherwise shave down in his opposition to the motion. But that's fee litigation for ya. These motions often get personal as the opposing lawyers launch a war against other, with defendant's counsel claiming the plaintiff's lawyer is over-billing and the plaintiff's lawyer claiming that defendant forgets that it actually lost the case.

In any event, in this case, the time expended on the attorneys' fees motion is not recoverable under the terms of the Rule 68 offer, which limited the attorneys' fees to those incurred at the time the Rule 68 offer was served. So the Court of Appeals takes the Rule 68 offer literally. The Rule 68 offer is really a contract offer, and we interpret contract offers based on their clear terms. The Court of Appeals concludes with some legal advice:

we conclude that when a settlement cuts off a plaintiff’s entitlement to attorney’s fees on a specific date, a district court may not award a party attorney’s fees for work incurred after that cut-off date. This includes fees for work performed preparing a fee application submitted to the district court in the event the parties are unable to agree on the attorney’s fees to be awarded despite a good faith effort to negotiate. If a plaintiff desires fees on fees in the event a fee application to the district court is required, the plaintiff should ensure that the settlement terms do not foreclose the availability of such fees.

“[t]he reasonable hourly rate is the rate a paying client would be willing to pay ... bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.”47 It was entirely appropriate for the district court to consider the complexity of a matter because a reasonable paying client would consider the complexity of his or her case when deciding whether an attorney’s proposed hourly rate is fair, reasonable, and commensurate with the proposed action. The district court’s decision to consider both Rothman’s experience and the garden-variety nature of the litigation, which “lasted less than 10 months, required no depositions, and involved no substantial motions or briefings” or appearances before the district court,48 was consistent with our direction for district courts, “in exercising [their] considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney’s fees in setting a reasonable hourly rate.”

Lilly v. City of New York, No. 17-2823(L)-CV, 2019 WL 3806446, at *5 (2d Cir. Aug. 14, 2019)
“[t]he reasonable hourly rate is the rate a paying client would be willing to pay ... bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.”47 It was entirely appropriate for the district court to consider the complexity of a matter because a reasonable paying client would consider the complexity of his or her case when deciding whether an attorney’s proposed hourly rate is fair, reasonable, and commensurate with the proposed action. The district court’s decision to consider both Rothman’s experience and the garden-variety nature of the litigation, which “lasted less than 10 months, required no depositions, and involved no substantial motions or briefings” or appearances before the district court,48 was consistent with our direction for district courts, “in exercising [their] considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney’s fees in setting a reasonable hourly rate.”

Lilly v. City of New York, No. 17-2823(L)-CV, 2019 WL 3806446, at *5 (2d Cir. Aug. 14, 2019)
“[t]he reasonable hourly rate is the rate a paying client would be willing to pay ... bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.”47 It was entirely appropriate for the district court to consider the complexity of a matter because a reasonable paying client would consider the complexity of his or her case when deciding whether an attorney’s proposed hourly rate is fair, reasonable, and commensurate with the proposed action. The district court’s decision to consider both Rothman’s experience and the garden-variety nature of the litigation, which “lasted less than 10 months, required no depositions, and involved no substantial motions or briefings” or appearances before the district court,48 was consistent with our direction for district courts, “in exercising [their] considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney’s fees in setting a reasonable hourly rate.”

Lilly v. City of New York, No. 17-2823(L)-CV, 2019 WL 3806446, at *5 (2d Cir. Aug. 14, 2019)

Wednesday, August 14, 2019

Inmate wins medical indifference claim

You may not realize how many lawsuits are filed by inmates claiming their constitutional rights were violated by their jailers. Most of these cases are dismissed, but some survive the initial motion to dismiss. This is one of the survivors.

The case is Abreu v. Lipka, a summary order issued on August 5. The district court dismissed the claim under Rule 12 for failure to state a plausible claim. State of New York did not participate in the appeal because the district court dismissed the case sua sponte, before the State even made an appearance in the case. Still, someone at the Attorney General's office submitted an amicus brief to the Second Circuit, though it did not help. The case is reinstated.

The Court of Appeals says plaintiff has a legitimate medical indifference claim. These cases are hard to win, as the inmate must show the jailers were deliberately indifferent to a serious medical condition. The inmate also has to show the bad-guys acted with subjective intent to deny their rights. Here is the law governing this case:

An Eighth Amendment claim predicated on inadequate medical care requires a plaintiff to demonstrate a defendant’s “deliberate indifference to [his] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). The medical need is considered “serious” where the denial of treatment “could result in further significant injury or the unnecessary and wanton infliction of pain.” Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000). “Deliberate indifference” requires allegations of the defendants’ subjective state of mind: that the prison official “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003).
 Abreu has a case, at least on the pleadings, because a multitude of people at the jail ignored his doctor's reccomedations about his medical treatment and that "he subsequently experienced daily chronic pain, bleeding and the exacerbation of his tuberculosis and mental health problems." What is more, plaintiff alleges, the prison doctor refused to review his medical records and "screamed racial epithets at him and told him he didn’t 'care [about Abreu’s] pain.'” A nurse, meanwhile, denied plaintiff necessary over-the-counter pain medication. While "the district court characterized Abreu’s allegations as 'vague' because they 'lack dates,'" the Second Circuit (Livingston, Carney and Berman [DJ.]) notes that "'the failure to allege specific dates does not necessarily run afoul of [federal pleading requirements], especially where, as here, the plaintiff lacks ready access to his medical records.'” The case now proceeds to discovery, where plaintiff will have a chance to prove his claims.

Tuesday, August 13, 2019

Circuit rejects gender discrimination claim under Section 1983

Did you know that employment discrimination plaintiffs can sue individual defendants under Section 1983, the federal civil rights statute that enforces constitutional provisions like the Equal Protection Clause? They can. It is not uncommon to see these plaintiffs sue their employers under Title VII of the Civil Rights Act of 1964 (the comprehensive employment discrimination statute) and also plead claims under Section 1983 against the individual defendants. Section 1983 claims can get you damages and other relief unavailable under Title VII, including punitive damages against individual municipal defendants, uncapped damages awards and no pre-filing requirements with the Equal Employment Opportunity Commission, which means you can head straight to court with your lawsuit instead of waiting for the EEOC to wrap up its six-month investigation. Section 1983 claims also have a more generous statute of limitations. But Section 1983 claims have their pitfalls, as demonstrated in this case.

The case is Naumovski v. Norris, issued on August 12. This is the first Second Circuit ruling that really identifies the distinctions between Title VII and Section 1983, and the end result is not good for plaintiffs who want relief under Section 1983. You can still pursue claims under both statutes, but they are not coterminous, as Section 1983 imposes additional hurdles to victory.

The plaintiff was assistant coach of the womens' basketball team at SUNY Binghamton, a public entity that is therefore held to constitutional standards. Rumors began circulating that plaintiff had an "inappropriate relationship" with a lesbian female athlete, though these rumors did not suggest a sexual relationship but favoritism. The Interim Athletics Director, Norris, told plaintiff that "your problem is that you're a single female in your 30's." Norris and another administrator, Scholl, eventually fired plaintiff, purportedly because of plaintiff's demonstrated favoritism toward certain student-athletes. Plaintiff sues for gender discrimination under Title VII and Section 1983, which provides damages for gender discrimination that violates the Constitution. The district court denied defendants' motion for summary judgment on the Section 1983 claim, but the defendants are able to immediately appeal on the ground that they are entitled to qualified immunity.

The Second Circuit (Winter, Cabranes and Raggi) rules that plaintiff cannot prevail on her Section 1983 claim, for the following reasons:

1. While sex discrimination claims may be brought under Section 1983, the burden of proof under Section 1983 and Title VII is different. Under Title VII, the plaintiff wins if she can prove that discrimination was a "motivating factor" in the termination (or demotion or hostile work environment). That means that even if the employer can show it would have terminated the plaintiff without the discriminatory intent, the employer is not off the hook, so long as "discrimination played a role in the adverse employment decision." But "motivating factor" is not the same as "determining factor" or "but-for" causation, which governs Section 1983 claims (and also Title VII retaliation claims as well as age discrimination claims). Congress wanted "motivating factor" to guide Title VII claims, but no such language appears in Section 1983, which means the courts apply the common-law fallback "but-for" causation test, a higher burden of proof for plaintiffs. In highlighting this distinction, the Second Circuit clarifies an ambiguity in its case law, as the court has "elided this distinction between Section 1983 and Title VII" in the past.

2. What this means for plaintiff in this case is that, even if she has a case under Title VII, she cannot proceed under Section 1983. The Second Circuit finds there was no animus toward women in the way it treated plaintiff. While plaintiff says Norris told her that her problem is she's a single female in her 30's, even if that comment could be understood "to disparage a subset of women, the statement is insufficient evidence from which a jury could infer Norris's discriminatory intent," as this was simply a "one-off comment" that courts will write off as a "stray remark" that has no evidentiary value. In addition, the court says, "Even if we assume Scholl and Norris interpreted the allegations against Naumovski as sexual in nature, that fact provides no additional support for a conclusion that Scholl’s and Norris’s own actions were based on discriminatory animus toward women generally or any subcategory of female employees in particular." It strikes me that the court is generously interpreting "stray remark" in this context, but the evidentiary world of "stray remarks" is a murky one.

3. Plaintiff also claims she was fired because of sex stereotyping, which violates the civil rights laws. While the Court of Appeals agrees that a plaintiff can win "by demonstrating that an employer acted against her because of a conscious belief that, on account of her sex, she was more likely to have engaged in sexual misconduct," plaintiff cannot win her Section 1983 claim on this basis because "Naumovski must . . . establish not only that Defendants’ sex stereotyping biases played some role in the decision to terminate her, but that this stereotyping was a 'but‐for' cause of that decision." The court says plaintiff cannot satisfy this heightened burden of proof because Norris's "single woman" comment was a stray remark and plaintiff cannot prove that the articulated reason for her termination -- "performance reasons" -- was false or inadequate, as plaintiff admits that Scholl told her that some players complained they were not treated fairly, and plaintiff does not dispute defendants' claim that she had performance issues toward the end of her employment.

4. Can plaintiff win her claim on the basis that she was discriminated based on her sexual orientation? The Second Circuit did hold in February 2018 that sexual orientation discrimination is a form of gender discrimination in Title VII. That's the Zarda case (now pending in the Supreme Court). But, to prevail under Section 1983, the plaintiff must show the defendant violated "clearly established law," which means there must have been a Second Circuit case already on point prior to the adverse action. That's another distinction between Section 1983 and Title VII, which does not require the plaintiff to prove the defendant violated established legal principles. While Zarda interpreted Title VII, it did not interpret Section 1983. What is clearly established under Title VII is not necessarily clearly established under Section 1983. The court reasons:

even if it were reasonable for the District Court to interpret Zarda as establishing a sexual orientation discrimination claim under the Constitution, the conduct at issue in this case predated the issuance of the Zarda decision. Prior to Zarda, our Court had expressly declined to recognize sexual orientation discrimination claims under Title VII, much less the Constitution. Thus, if anything, the “clearly established law” at the time Defendants terminated Naumovski’s employment was that sexual orientation discrimination was not a subset of sex discrimination.

Wednesday, August 7, 2019

This is how retaliation cases work under the discrimination laws

What does it take to win a retaliation claim under the employment discrimination laws? This case tells you how it's done, and what judges do post-trial when the losing defendant challenges the verdict. The short answer is that judges are reluctant to throw out jury verdicts.

The case is Tulino v. City of New York, a Southern District of New York case issued on August 1. I assisted in representing the plaintiff post-verdict. You can read about the $1.25 million pain and suffering verdict at this link.

Plaintiff was sexually harassed by her male supervisor, Ali, who "cultivated an inappropriately close relationship with her and became angry and resentful when Tulino tried to distance herself from him," writes Judge Rakoff in the post-trial Rule 50 decision. On November 12, 2014, after she and Ali got into an argument, Tulino said she would report him to the internal EEO office because of his harassment. Afterward, Ali told Tulino to turn in her Blackberry, switched her to a different desk and assigned another coworker as a "backup" for Tulino's work. Moreover, "a great deal of her work was reassigned to" that backup worker. Five days after the November 12 EEO conversation, Tulino sent an email to Ali, the EEO office and HR stating that Ali was retaliating against her. The jury found that the City agency plaintiff worked for, through Ali, had in fact retaliated against her, awarding her $500,000 in damages for the retaliation.

The City next challenged the verdict under Rule 50(b), claiming there was not enough evidence for plaintiff to win the retaliation claim. Under the New York City Human Rights Law, the jury may find retaliation if management's response to the plaintiff's protected activity would deter a reasonable employee from complaining again about discrimination. As Judge Rakoff notes, these motions are hard to win. The losing party has to show there was "a complete absence of evidence" to support the verdict.

The City argued that the jury could not find that Tulino had actually "opposed" discrimination on November 12, 2014 because her testimony that she told Ali that she was going to report his discrimination to the EEO office is contradicted by a tape recording Tulino made of the conversation, in which she mentioned going to EEO "but does not clearly indicate she will do so to report Ali's discrimination." Instead, Judge Rakoff states, the recording says Tulino said she would "go to EEO" unless Ali agreed to "tell her what's happening." This argument is not enough to vacate the retaliation verdict. The district court notes that "the recording does not appear on its face to capture the entirety of the conversation, so there is no inherent contradiction between plaintiff's testimony and the recording." Moreover, "Plaintiff specifically testified that she told Ali she would be reporting him to EEO, and that Ali responded by saying 'You're finished. You're finished.'" All of this speaks to the plaintiff's credibility. That is for the jury, not a trial court post-verdict, especially since the City did not make this point in summation to the jury. "The Court is extremely reluctant to discard a jury verdict based on a credibility argument that defendants apparently determined was not worth even presenting to the jury."

As for the damages, judge feel more comfortable reducing large jury verdicts than vacating the verdicts outright. While the jury awarded Tulino $500,000 in pain and suffering for the retaliation, the district court reduces that portion of the award to $250.000. Along with the $1 million in pain and suffering for the sexual harassment, the total award is $1.25 million.

Tuesday, August 6, 2019

Sarah Palin wins defamation appeal against New York Times

This case examines how trial courts are supposed to resolve motions to dismiss the lawsuit. Can the judge hear live testimony in addition to reviewing the complaint in determining if the plaintiff alleges a plausible claim for relief? The answer is that the trial court is prohibited from doing so. The end result is that Sarah Palin can sue the New York Times for defamation.

The case is Palin v. New York Times, issued on August 6. Remember Sarah Palin? We all thought at the time that her candidacy for Vice President in 2008 was the rock-bottom moment for the United States. Back in 2017, after a mass shooting in Alexandria, Virginia, the Times ran an editorial about the "vicious" nature of American politics. The editorial drew attention to Palin's political action committee (SarahPAC), which has circulated a map that superimposed congressional districts with crosshairs that resembled the crosshairs from a rifle. The editorial also made reference to the shooting in 2011, when Jared Loughner shot Congresswoman Gabrielle Giffords. The Times said the "link to political incidement was clear" and that the political action committee had "circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs." The Times quickly backed away from that editorial after a public outcry. Pain sued the Times for defamation, claiming the Times was associating her with the shootings.

The case was assigned to Judge Rakoff, who held an evidentiary hearing for "one close question," whether Palin had sufficiently pled the actual malice element of her defamation claim. (As a public figure, Palin cannot win a defamation unless the falsehood was malicious or resulted from a reckless disregard for the truth). Here is what happened next:

The district judge ordered the Times to identify the author of the editorial and the Times produced James Bennet, the editorial page editor at the Times and the author of the editorial, to testify at the hearing. Bennet was the hearing’s only witness. Bennet explained at the hearing that his reference to Palin in the editorial was intended to make a rhetorical point about the present atmosphere of political anger. He also recounted the editorial’s research and publication process and answered inquiries about his prior knowledge of the Loughner shooting six years earlier and any connection to Palin.

Bennet testified that he was unaware of any of the earlier articles published by the Times, or by The Atlantic (where he had previously been the editor‐in‐chief), that indicated that no connection between Palin or her political action committee and Loughner had ever been established. In addition to answering questions from the Times’ counsel, Bennet responded to questions by Palin’s counsel and the district judge. Neither party objected to the district judge’s decision to hold the hearing.
Following the hearing, the district court dismissed the lawsuit. The Court of Appeals (Walker, Chin and Keenan [D.J.]) has revived the case. The trial court's evidentiary "runs headlong into the federal rules" of civil procedure. While Judge Rakoff invokved Rule 43(c) as justification for the hearing, that rule "has nothing to do with the proceedings at the motion-to-dismiss stage." What is more, under Rule 12(b)(6), if the district court considers evidence outside the pleadings on a motion to dismiss, it has to treat the motion as one for summary judgment, where the parties can supplement the evidentiary record beyond the pleadings. The trial court did not convert the motion to one for summary judgment, and instead the Court of Appeals says "the district court viewed the hearing as a way to more expeditiously decide whether Palin had a viable way to establish actual malice." The court cannot do that.

The Court of Appeals also revives the case because Palin's lawyers tried to amend the complaint following the evidentiary hearing. That proposed amendment states a plausible claim for relief because the editorial writer used to work for the Atlantic, which ran an article that rejected any link between Palin and the Giffords shooting, and the writer's brother is a Democrat who used to serve in the U.S. Senate and was endorsed by House members who were targeted by the SarahPAC map. Palin also endorsed the brother's opponent. These allegations in the proposed amended complaint give rise to a plausible malice inference, the Court of Appeals says, along with the fact that the Times issued an immediate correction to the editorial following an outcry over its linking Palin to the shootings. As a reasonable reader may identify Palin as the subject of the editorial criticism, the editorial is "of and concerning" Palin, which further supports her defamation claim. The case now proceeds to discovery.  

Sunday, August 4, 2019

SDNY judge awards sexual harassment/retaliation plaintiff $1.25 million for pain and suffering

A Southern District judge has ruled that a sexual harassment plaintiff is entitled to $1.25 million in damages for pain and suffering. While Judge Rakoff reduced the damages award from $2 million, the final damages award is among the highest for a single-plaintiff employment discrimination claim.

The case is Tulino v. City of New York, issued on August 1. I assisted in handling the post-trial motions for plaintiff, who suffered harassment from an older, male supervisor over the course of several years. The jury heard evidence that the supervisor "cultivated an inappropriately close relationship with [plaintiff] and became angry and resentful when Tulino tried to distance herself from him." The supervisor repeatedly called Tulino his "special friend," and his emails and text messages helped prove her case. After plaintiff threatened to report her supervisor to EEO, she suffered retaliation in the form of lost job assignments.

The jury returned a verdict in plaintiff's favor on the sexual harassment and retaliation claims. It also awarded her $2 million for pain and suffering. (The constructive discharge claim was dismissed during trial, so there are no back pay damages). Post-trial, the City tried to vacate the retaliation verdict and reduce the damages award.

Juries are not told how to assess pain and suffering damages. Juries are also not told that their handiwork will be picked over by the courts and counsel to ensure the damages awards are not too high. Trial judges in the Second Circuit rely upon a three-part damages model in reviewing jury awards. "Garden variety" damages do not involve medical treatment and will cap out at $125,000. "Significant" damages are worth somewhere in the six figures, and "egregious" damages, which involve major lifestyle changes and severe pain and suffering, provide the largest awards. Judge Rakoff notes that plaintiff's expert said she suffers panic attacks, post-traumatic stress disorder and major depression. The medical records certainly bear that out. While the court states plaintiff suffered "significant" damages, I am wondering if the court meant to say she suffered egregious damages. That's because the court reduced the damages award to $1.25 million, which falls within the egregious category.

To my knowledge, the highest damages award for a single-plaintiff harassment case is Turley v. ISG Lackawana, Inc., 774 F.3d 140 (2d Cir. 2014), where the Court of Appeals assessed the racial harassment plaintiff's damages at $1.32 million. The Court in Turley said that amount pushes the limits of what is acceptable. Judge Rakoff cites Turley in his analysis, along with Zeno v. Pine Plains Central School Sch. Dist., 702 F.3d 655 (2d Cir. 2012) (a case that I tried in 2010), where a school bullying victim was awarded $1 million. Few sexual harassment cases entitle the plaintiff to $1 million in damages; Tulino's case is now one of them. The court said in particular that plaintiff is entitled to $1 million for the sexual harassment and $250,000 for the retaliation.

This ruling includes a few other interesting holdings addressing constructive discharge and retaliation. I will get to those issues in a separate blog post.

Tuesday, July 30, 2019

SDNY bankruptcy court finds unlawful termination survives employer's bankruptcy petition

Let's say you won your employment discrimination case. But before you are able to collect on the judgment, the employer files for bankruptcy. What happens next? Bankruptcy court is a specialized forum, with its own rules and procedures that bear little relationship to the Federal Rules of Civil Procedure or the CPLR. This case provides some guidance on how to proceed.

The case is Fuller v. Rea, issued by the SDNY bankruptcy court on July 29, 2019. I represent Fuller, who defeated Rea and his company in an employment discrimination case before the State Division of Human Rights, which found that Rea terminated Fuller because she is transgender. The employer appealed that finding to the Appellate Division, which affirmed Fuller's victory. Rea then filed for bankruptcy. Now what?

After you get notice that the employer has filed for bankruptcy, you must cease and desist any collection efforts. Instead, you have to file a Proof of Claim with the bankruptcy court to stake your claim to your damages award. But that is not enough to get paid. If you are defending a judgment, you will have to file an Adversary Proceeding in bankruptcy court, which is a related case to the initial bankruptcy filing. The reason for this is that not all debts are discharged or extinguished as a result of the bankruptcy filing. Any debt that arises from a "willful" and "malicious" injury will not be discharged and the victim can legally pursue that debt once the employer (or the debtor) is able to extinguish his other debts through the bankruptcy court.

In our case, I filed an Adversary Proceeding with the bankruptcy court, claiming that Fuller's termination was willful and malicious. After Rea filed his Answer to that complaint, I moved for summary judgment, arguing the state court judgment should have collateral estoppel effect on whether Fuller's damages were the product of Rea's willful and malicious actions. Under this argument, there would be no need for discovery or a trial in bankruptcy court on this issue. In a ruling handed down on July 29, Chief Judge Morris agreed with us and ruled that Fuller's debt was the product of a willful and malicious injury, and that Rea is collaterally estopped from arguing otherwise since the State Division of Human Rights provided him with a full opportunity to defend himself against Fuller's employment discrimination claims.

The "willful and malicious" inquiry creates a high burden for bankruptcy creditors who want to collect on their debts. That language draws from 11 U.S.C. sec. 523(a)(6), which is part of the bankruptcy code. "Willful" under the code is defined as "a deliberate and intentional injury, not merely a deliberate or intentional act that leads to injury." "Malicious" is defined as "wrongful and without just cause or excuse, even in the absence of hatred, spite, or ill-will." Willful and malicious is not an either/or proposition. The creditor has to prove both. A routine negligence case will probably not cut it.

Fuller wins the summary judgment motion on these issues. First, the bankruptcy court finds that her termination was willful under section 523(a)(6) because Rea terminated her employment only hours after she came into work with a name-change order from State Supreme Court. She was now Erin Fuller. Rea said, "now I have a problem with your condition. I have to let you go." The bankruptcy court writes, "Plaintiff's termination was intentionally discriminatory and motivated by unlawful discriminatory animus, the animus here being Defendant's exclaimed and exhibited 'problem with [Plaintiff's] condition.'" Moreover, the SDHR's findings "establish that Defendant was motivated by discriminatory factors and deliberately caused the adverse employment action." In my research into this issue, few cases turned up involving disparate treatment employment discrimination (as opposed to sexual harassment, where malice is more easily inferred) and nondischargeability. Perhaps recognizing that, Judge Morris concludes, "This Court now holds that discriminatory termination is the injury Plaintiff suffered and that a judgment finding a Defendant intentionally caused that injury, particularly when an unlawful discriminatory motive is apparent, is enough to meet the prong of willfulness under section 523(a)(6) of the Bankruptcy Code."

Fuller's termination was also malicious under the bankruptcy code. Of course, as the bankruptcy court noted in the "willful" analysis, when he fired her, Rea told Fuller that he had a problem with her condition. Also, not only did the SDHR find that Fuller was "continuously asked to dress like a man and was told, following her termination, that if she dressed like a man she would be allowed to return to work," but she was terminated on the same day as the name-change order and Rea continued to issue Fuller's paychecks in her male name despite warnings from Fuller's doctor about the potential danger of treating her "as anything other than female." Moreover, the SDHR imposed a civil penalty against the employer, which "act[s] as a persuasive basis for malice implicit in the 'direct and deliberate' discrimination found by the ALJ." 

Thursday, July 25, 2019

NYC's driver suspension procedure violates due process

The City of New York has an elaborate process that kicks in when taxicab drivers are arrested. When that happens, their licenses are suspended. The drivers can then request a hearing to have the suspensions lifted. The taxi drivers sued the City under the Due Process Clause, claiming these hearings are a sham. The City loses the case, which provides a good tutorial on how federal due process cases are decided.

The case is Nnebe v. Daus, issued on July 19. These post-suspension hearings are impossible to win (though, in the end, most are able to resume driving their taxi's through a favorable disposition of their criminal cases). The Court (Katzmann, Lynch and Hall) notes that almost no one wins these hearings. Only three drivers out of hundreds of hearings have actually won their hearings, and all three cases were decided by the same ALJ, who was "promptly reprimanded" and "took care not to make another such recommendation for fear that the would be transferred to a less desirable work location." So those three wins were quirks. I guess they were supposed to lose.

The question is whether the post-suspension hearings provide an opportunity for a taxi driver to assert that, even if the criminal charges are true, continued licensure does not pose any safety concerns. Since the drivers do not have that opportunity, the hearings violate due process, in part because no one ever wins them.

The Court first finds that the hearings implicate an important private interest in the taxi drivers earning a living. So they win that prong of the three-part due process analysis under Matthews v. Eldridge (1976), which remains the Supreme Court's seminal procedural due process case. The Cost next examines the risk of erroneous deprivation from the hearings. That's part two of the Matthews test. The Court notes, that once the process exhausts itself, as many as 90 percent of the drivers are back on the road, driving like maniacs again. Since that high number includes drivers whose licenses were initially suspended, the system in place does pose a risk of erroneous deprivations. So the plaintiffs win that prong also, and that makes them two-for-two in the Matthews equation.

The Court turns to the third Matthews prong, which weighs the governmental interest in immediately suspending the licenses upon a driver arrest. "While we take seriously the Government interest implicated [ensuring the safety of the tax-riding public and maintaining the pubic trust in taxi's], we hold that, given the potential of conducting far more meaningful hearings at little or no additional financial or administrative cost to the [Taxi and Limousine Commission], that interest is outweighed by the private interest at stake and the unacceptably high risk of erroneous deprivation."

Wednesday, July 24, 2019

"Annoying advertisement" ban in Uber vehicles does not violate First Amendment

The City of New York regulates taxicabs and fore-hire vehicles like Uber. Those regulations sometimes impact the First Amendment. In this case, the city's rules governing commercial speech in this vehicles are under attack. The Court of Appeals says these rules do not violate the First Amendment.

The case is Vugo, Inc. v. City of New York, issued on July 16. The city has banned video advertisements inside for-hire vehicles (FHV) on the basis that "passengers rind in-ride advertisements . . . extremely annoying." But taxicabs (distinct from FHV's) are allowed to have certain advertisements (they call it "Taxi TV") to defray the costs of computer screens and related technology in those vehicles to alert riders to track the progress of their metered fare as the taxi's sit in traffic and the meter continues to rise. The FHV people claim the prohibition against these advertisements in their cars violates the First Amendment.

Commercial advertisements must satisfy constitutional standards, but since these advertisements do not involve political speech, the government enjoys additional leeway in regulating this speech, and the rules cannot be struck down unless they directly advance a substantial governmental interest and the regulation is no more extensive than necessary to sere that interest. We call this the "intermediate scrutiny" test, as opposed to the much more restrictive standards guiding political speech restrictions. After reviewing recent legal developments in this area, the Court of Appeals (Katzmann, Livingston and Droney) concludes that the Supreme Court in Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011), has not altered the intermediate scrutiny standard relevant to these claims, and no Court of Appeals has ruled otherwise.

First things first: the Court says the City has advanced a substantial governmental interest in prohibiting video advertisements in FHV's because the public hates these advertisements. This logic derives from cases holding the government has a substantial interest in regulating community aesthetics and preventing "undue annoyance." This case extends that rationale to video advertisements.

Second, the regulation has a reasonable fit with the interest in avoiding customer annoyance. The FHV lawyers argue the regulation is underinclusive, which even the Court of Appeals says can raise a "red flag." But the government still has authority to regulate matters like this. The City wins this case (and the district court's contrary ruling is overturned) because (1) the Taxi TV exception facilitated the installation of the handy credit card machines in the vehicles and (2) the City had good reason to ban these annoying advertisements. And, by the way, it's not me who obsesses over these annoying advertisements. The Second Circuit ruling repeatedly makes reference to how irritating they are. The fact that taxicabs and not FHV's cannot use these advertisements is not fatal to this regulation, as the FHV's covered by the challenged rules accounted for more than one-third of the daily passenger trips in 2016, including the yellow and green taxis that are not classified as FHV's, the ones that we hail from the street. According to the statistics, that year, riders took 370,000 daily trips in yellow taxis and 213,000 daily trips in Uber and Lyft vehicles. Since that many people were spared these advertisements, that amount is substantial enough to justify the selective regulation.

Tuesday, July 23, 2019

Title IX claims carry a three-year statute of limitations

This case resolves two issues that I thought was settled long ago: what is the proper forum for educational discrimination claims brought under Title IX of the Civil Rights Act of 1964? And, what is the statute of limitations for educational discrimination claims brought under the Americans with Disabilities Act? The Court of Appeals holds for the first time in a published ruling that a three year statute of limitation applies.

The case is Purcell v. New York Institute of Technology, issued on July 18. The issue arises because plaintiff says the institute discriminated against him as a student. The trial court said the statute of limitations is four months, which is the timeline under Article 78 of the New York CPLR. The Article 78 angle may seem silly, but it is true that you can challenge academic decisions against private colleges under Article 78, which is an expedited legal procedure that asks the court to resolve the dispute on the basis of affidavits and exhibits without live testimony. The drawback for plaintiffs is that, in Article 78's, the colleges get the benefit of the doubt in cases involving academic decisionmaking on the theory that colleges are best suited to address these issues unless they abuse their discretion and issue a crackpot ruling on the academic dispute.

The Court of Appeals (Katzmann, Walker and Cabranes) now holds that federal law is available to resolve these disputes as well, if the students raise federal claims. We all kinda knew this, but sometimes it takes a while for the Court of Appeals to definitively resolve what we all kinda knew all along. Purcell wins on this issue because he is raising a federal claim and not the kind of state law claim that normally arises in an Article 78 proceeding. The Court says, "However strongly New York may feel about the need to defer to academic decision-making, and however justified its decision to funnel all related state claims into Article 78 proceedings may be, New York cannot nullify a federal right or cause of action it believes is inconsistent with its local policies." If at all possible, federal law reigns supreme in our system, however the State of New York feels about it. Since the statute of limitations under Title IX is three years (borrowing from state law personal injury deadlines), Purcell's case is timely and the case returns to the federal trial court.

Along the way, the Court of Appeals resolves an issue that lingered for years without a definitive ruling from this appellate court. In unpublished summary orders, the Second Circuit had held that ADA claims against educational institutions carry a three-year statute of limitations. The Court now solidifies that reasoning in a published ruling. It also reaffirms that the three-year statute of limitations governs Title IX claims.

Monday, July 22, 2019

The rule of completeness - how it applies in the real world

One way to ensure that your statements are not introduced before a jury out of context is to allow the jury to hear the entire statement. Lawyers like to cherry-pick statements from the opposing party in trying to prove their cases. But if they leave out the rest of the story, the courts will bring in the entire statement. This case shows that the so-called "rule of completeness" has its limits.

The case is United States v. Williams, issued on July 9. I wrote about this case at this link, dealing with the scope of the police department's inventory search which revealed a gun stowed away in a secure compartment of a rental car. The Court held the inventory search did not violate the Fourth Amendment even though it was the second inventory search of the evening. The second search was prompted by defendant's freak-out when he learned the police were going to return the car to the rental people.

A second issue in the appeal involves Williams' claim that the trial court should have allowed the jury to know that he initially denied the gun was his before he eventually 'fessed up. As it happens, Federal Rule of Evidence 106 addresses the rule of completeness, but it only mentions written statements, not oral statements. But the common law applies that rule to oral statements. Why doesn't Rule 106 cover oral statements as well? I have no idea. Maybe the committee that drafted the rule had their eye on the clock and it was almost time to go home for the weekend.

After initially ruling that the rule of completeness allows a party to introduce hearsay evidence to place the one-sided comment in context, the Court of Appeals (Kearse, Livingston and Carney) says the trial court did not abuse its discretion in preventing Williams from introducing his initial denial about the gun ownership before the jury. The rule is that defendant had to "demonstrate that admission of the initial statements denying ownership of the gun was 'necessary to explain' his later statements that the gun was his, to place [these statements] in context, to avoid misleading the jury, or to ensure fair and impartial understanding' of these later statements." The Court says Williams is trying to take the doctrine too far, reasoning:

It is not uncommon for a suspect, upon interrogation by the police, to first claim n a self-serving manner that he did not commit a crime, only thereafter to confess that he did. But the rule of completeness does not require the admission of self-serving exculpatory statements in all circumstances, and the mere fact that a suspect denies guilt before admitting it, does not -- without more -- mandate the admission of his self-serving denial. As the district court here aptly pointed out, Williams' confession was 'simply a reversal of his original position."