Wednesday, July 17, 2019

Second inventory search was legal under the Fourth Amendment

There are a zillion exceptions to the warrant requirement under the Fourth Amendment. In this case, we become acquainted with the rule that police officers may search a vehicle without a warrant provided the search is part of a legitimate "inventory search." This case asks when the police may conduct multiple inventory searches.

The case is United States v. Williams, issued on July 9. Defendant was driving a rental car that was leased in someone else's name. The police pulled him over for reckless driving. When the police brought defendant back to the precinct, they immediately commenced an inventory search of the car. As a general rule, the police are allowed to do this without a warrant. The reasons for an inventory search are (1) "to protect the owner's property while it is in police custody; (2) to protect the police against spurious claims of lost or stolen property; and (3) to protect the police from potential danger." Since these searches do invade the motorist's privacy, the police must conduct inventory searches pursuant to established police procedures. If, in the course of a legitimate inventory search, the police find something illegal, that contraband can be used against the driver in court.

Once the inventory search ended, the police told defendant the car would be returned to the rental agency. This made defendant visibly nervous, and he demanded that the police allow him to make a phone call. Defendant got on the phone and told someone to quickly retrieve the car, and the police noticed his stress level was elevated and he sounded "more stressed." This prompted the police to search the car again. They found a gun hidden in the vehicle, which they retrieved after loosening the screws of a center console that is not normally designed to be opened.

Following his conviction for the illegal gun, defendant tells the Court of Appeals that the second inventory search was illegal and that only the initial inventory search complied with the Fourth Amendment. This is a tricky issue because the second search happened only because defendant got nervous when he realized the car would be returned to the rental place. The Court of Appeals (Livingston, Kearse and Carney) upholds the search. Not only was the second search conducted pursuant to NYPD procedures, but it does not matter that those procedures say nothing about conducting follow-up searches. The Court says these policies do not have to account for every possibility. What is more, the second search made sense because defendant's nervousness about the rental car returning to the agency led the police to think that something of value remained in the car, thereby implicating the very reasons why the police are allowed to undertake inventory searches in the first place. It does not look like the courts have ruled on whether a second inventory search is legal, but the Second Circuit breaks ground in this case on that issue.

The Court of Appeals does not really get into this, but my sense is they worried that someone else would rent the same car the next day and somehow find the gun in the console. While the console was screwed shut as a matter of course (the car was manufactured that way), who the hell knows what would happen if some kiddo with a screwdriver decided to open up the console and found the gun?

Monday, July 15, 2019

Racial harassment claim proceeds against Wal-Mart

The Court of Appeals has issued a summary reversal against Wal-Mart, which allegedly discriminated against a Black-Cuban-American employee whose internal complaints were met with retaliation.

The case is LeGrand v. Wal-Mart Stores East, LP, issued on July 11. This is an appeal from a Rule 12 order, which means there has not been any discovery yet and the court assumes the allegations in the complaint are true before it determines whether the plaintiff asserts a plausible claim for relief. There are three major holdings here: hostile work environment, constructive discharge and retaliation.

1. Plaintiff has a hostile work environment claim because "LeGrand’s supervisor, Karen Alles, and Alles’s supervisor, General Manager Eileen Matranga (both defendants), referred to LeGrand and her mother [Mims] using racial epithets on 'several occasions' in conversations with other co‐workers between February 2013 and August 2014. Mims and LeGrand do not allege hearing Defendants using that language first hand. They allege learning of it from LeGrand’s co‐workers." These allegation are enough to proceed to discovery on the harassment claim. The Court of Appeals (Droney, Jacobs and Leval) says "Comments allegedly made by Alles and Matranga to LeGrand’s co‐workers satisfy each of these elements, even if they were not made in LeGrand’s presence: reasonable people would find an environment to be hostile if supervisors make racist comments about them behind their backs." The Court does not cite case law for the proposition that comments made behind the plaintiff's back can create a hostile work environment, but that principle is firmly rooted in Second Circuit law, for example, Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 61 (2d Cir. 2000).

2. Plaintiff also has a constructive discharge claim. This holding is more interesting since most constructive discharge claims fail as the courts do not like it when employees walk off the job. In order to prove constructive discharge, the plaintiff has to show her working conditions were so awful that a rational person would have felt compelled to resign. Easier said than done. I don't think there are more than a dozen published, victorious constructive discharge claims in the Second Circuit over the last 25 years. But plaintiff sufficiently alleges such a claim in this case. The Court says, "Defendants’ racist comments, harassment, and refusals to accommodate her transfer and scheduling requests when similar requests were 'approved without any issues or the same level of scrutiny,' are enough to make LeGrand’s working conditions 'so difficult or unpleasant that a reasonable person in [her] shoes would have felt compelled to resign.'”

3. Finally, plaintiff pleads a retaliation claim. The Second Circuit: "LeGrand (and her mother) lodged several complaints with Walmart’s corporate headquarters about the unlawful treatment alleged in the complaint. LeGrand alleges that the hostile conduct directed against her escalated after the first two complaints and that, around the time LeGrand’s scheduling and transfer requests were denied, Alles told a co‐worker she was retaliating against LeGrand because of these complaints. These facts are all that is required to raise inference of retaliatory conduct sufficient to withstand a motion to dismiss."

Thursday, July 11, 2019

Court of Appeals second-guess the NLRB in union retaliation claims

When management finds out that someone in the workplace is trying to unionize, they often don't respond well. Which is why we have the National Labor Relations Act. When the union organizer believes the employer is retaliating against him for trying to unionize, he can go to the National Labor Relations Board. If the NLRB rules for the employee, then management can appeal to the Second Circuit, which usually gives the NLRB the benefit of the doubt in these cases. That's not quite what happened here.

The case is Bozzuto's Inc. v. National Labor Relations Board, issued on June 24. Two employees, Greichen and McCarty were trying to start up a union at Bozzuto's, which operates wholesale warehouses in Connecticut. Word got out what these guys were up to. A senior Vice President approached McCarty and asked him what "what's going on with this Union stuff?" After management issued a memo to employees that they did not really need a union and that management was looking out for their best interests, Greichen was written up for alleged performance deficiencies and "scary" workplace demeanor. Greichen then got himself fired when he refused to attend a meeting following his comments that management was "screw[ing] the associates." As for McCarty, he continued with the union organizing even after Greichen got canned, and management then accused him of performance deficiencies also, resulting in his termination. McCarty disputed those allegations. After the NLRB ruled in favor these employees, Bozzuto's appealed to the Second Circuit (Kearse, Livingston and Carney), which affirms.

These cases make their way to the Second Circuit at least a few times per year. The Court of Appeals usually defers to the NLRB's judgment in these matters (but not always, as demonstrated by this case), reiterating that it is illegal to retaliate against workers for their union activity. A few longstanding rules arise in this case. First, while management is allowed to speak with employees about the union organizing, it cannot threaten the employees over it. As for McCarty, the employer actually did not break the law when it asked about the "Union stuff."  After taking apart the evidence on this issue, the Second Circuit finds this inquiry was not a coercive gesture but instead a passing question. This case is probably the definitive Second Circuit ruling on how to interpret managerial inquiries like this. That's good for management in general, but the employer in this case is not out of the woods, as the Court of Appeals goes on to find that McCarty's termination was retaliatory and therefore unlawful.

Greichen's termination, however, was legal. The Circuit says his discharge was also illegal. While the employee did not attend the meeting despite management's request, the evidence does not support the NLRB's finding that the meeting was set up as a pretext to go after Greichen. Rather, this employee was insubordinate in not showing up at the meeting. Like the analysis relating to McCarty, the analysis guiding Greichen's case is involved and a good example of the Court of Appeals digging into the record to ensure the NLRB is doing its job properly.

Tuesday, July 9, 2019

Court says Trump violated the First Amendment in blocking Twitter dissenters

A businessman with no political experience was elected to public office a few years ago. He was a different kind of politician, one who zig-zagged on policy and overruled his advisors without telling them in advance. He also began utilizing social media to communicate directly with the public, triggering controversy with off-hand comments that sometimes contained spelling and grammatical errors. This social media platform allowed his constituents to talk back. Some constituents were not fans of his, so he cut them off and blocked them, shutting them out of the public debate. 

The man I'm talking about is the president of the United States, and the social media platform is Twitter. There was a time when a presidential press conference was a big deal, even a bigger deal when the president consented to an interview by a serious journalist who could ask real questions. We are not seeing these press conferences anymore. They used to be the only game in town. Richard Nixon never had Twitter at his disposal. Neither did Ronald Reagan and Bill Clinton. Twitter does not offer much, but the public can talk back directly to any politician with a Twitter account. So what happens when the president blocks people from seeing his tweets?

The case is Knight First Amendment Institute v. Donald J. Trump, issued on July 9. The facts are not complex. Trump conceded in this litigation that he blocked some Twitter followers because he did not like what they had to say. The Court of Appeals (Parker, Hall and Droney) says this constituted viewpoint discrimination in violation of the First Amendment. While Trump's lawyers argued that his Twitter account was not a public forum but, instead, a private outlet which Trump started before he wandered into the White House, the Court of Appeals disagrees, as his current Twitter thing is largely devoted to discussing public policy and prominently states that Trump is the 45th President of the United States. What started out as a private forum is now public. As Judge Parker writes, the current Twitter account is a "channel for communicating and interacting with the public about his administration.” And, "The public presentation of the Account and the webpage associated with ii bear all the trappings of an official, staterun account." Believe it or not, the National Archives regards Trump's tweets as official government records.

Having squared that away, the Court of Appeals next determines whether the Twitter account is a public forum. The forum analysis is usually tricky, as not all speech on government property or even government speech creates a public forum that would prohibit viewpoint discrimination under the First Amendment. The analysis here is not complex. The Second Circuit finds the Twitter account is in fact a public forum, which places strong restrictions on how the government may restrict speech in connection with that forum. As the Court says, "Opening an instrumentality of communication for indiscriminate use by the general public creates a public forum. The Account was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation. We hold that this conduct created a public forum."

As I said, viewpoint discrimination is prohibited in a public forum. The Court holds that Trump committed a First Amendment violation in blocking his critics. The panel summarizes its reasoning this way:

the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.
Finally, the Court of Appeals rejects Trump's arguments that his Twitter account is really government speech which does not require dissenting responses. There is such a speech classification, such as when the government makes an official pronouncement. But that is not this case, as the Twitter account actually involves comments and feedback from thousands of members of the public. This is also a tricky area of First Amendment speech. But it provides Trump with no defense. As the Court writes:

Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President’s tweets, the message is identified as coming from that user, not from the President. There is no record evidence, and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation. The Supreme Court has described the government speech doctrine as “susceptible to dangerous misuse.” It has urged “great caution” to prevent the government from “silenc[ing] or muffl[ing] the expression of disfavored viewpoints” under the guise of the government speech doctrine. Extension of the doctrine in the way urged by President Trump would produce precisely this result.
This is a highly-political case only because the defendant is a controversial president. I seriously doubt the judges on this case are Trump fans, and they know what the rest of us know: the president's Twitter feed is something else. The Court, however, wraps up its analysis with a gentle reminder that in today's rough-and-tumble speech environment, the way to deal with disfavored speech (including those of presidential critics) is not suppressing that speech but allowing it. "In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less."

Discrimination claim is preempted by federal labor law

This woman sued her former employer, a Long Island hospital, and her labor union after she was fired for allegedly falling asleep on the job. She claimed her termination constituted disability discrimination because she has sleep apnea, which can cause excessive somnolence. She also claimed the union did not fight for her. The case is dismissed on preemption grounds, as the district court found, and the Court of Appeals agrees, that the case is preempted by the Labor Management Relations Act, a federal statute. The claim is also untimely under that statute.

The case is Whitehurst v. 1199 SEUI United Healthcare Workers East, issued on June 28. Plaintiff brought her claims in state court alleging disability discrimination under state and New York City law. The Union removed the case to federal court, and the district court denied plaintiff's request to send it back to state court, as she was really asserting a duty of fair representation" claim under the LMRA. The federal court also said the claim against the hospital arose under federal law. In the end, the EDNY dismissed the complaint as untimely under federal law. I presume the state law claims that plaintiff tried to assert were timely.

Off to the Court of Appeals (Hall, Sack and Droney), which agrees with the district court. Certain claims simply cannot be brought in state court, and LMRA claims are among them. That means claims like this are subject to "complete preemption." Under that statute, suits for violation of contracts between and employe and a labor organization may only be filed in federal court provided the industry affects interstate commerce, which covers most industries, including Wickerd's farm (two points if you know what that even refers to). Where, as here, the claim actually implies rights created by the union contract, the state law claim must either be treated as an LMRA claim or be dismissed as preempted by federal labor-contract law. The Supreme Court said that in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). So, while plaintiff thought she was bringing a legitimate state law claim in state court, she actually only had an untimely federal claim that could only be heard in federal court.

The problem with plaintiff's claim against the hospital is that a court cannot adjudicate that claim without first deciding whether she had a right to avail herself of the grievance process, which in turn requires an interpretation of the union contract. Since the contract is the source of the rights plaintiff seeks to vindicate, her claim is intertwined with that contract and is therefore preempted by the LMRA. We have a similar analysis with respect to her claims against the union. Any claim against the union implicates the collective bargaining agreement, as she claims the union denied her proper representation by failing to pursue arbitration. All of this is tied up in the union contract. And, I am sure a major bummer for Whitehurst, who loses her claim based on a technicality that only lawyers and judges will ever understand.

Monday, July 8, 2019

"Diet" Coke is not misleading under New York law

This year alone, the Second Circuit has issued three decisions rejecting false advertising claims relating to soda pop, including this case. This time around, the Court for the first time issues a published opinion that says Diet Coke does not mislead its customers through use of the word of "diet."

The case is Geffner v. The Coca-Cola Company, issued on June 27. The claim is that calling it "diet" Coke is misleading because it does not promise weight-loss. The Second Circuit notes that it has issued two summary orders this year on this issue involving Dr. Pepper and Pepsi. It now puts this issue to rest in a published opinion.

The Court (Cabranes, Raggi and Droney) starts off by swiftly rejecting any claims that the use of attractive models for Diet Coke advertising is misleading. The Court note that this sort of propaganda is ubiquitous in the advertising world such that it cannot reasonable be understood to "convey any specific meaning at all." The Court adds that the statement that Diet Coke will "not go to your waist" is vague and non-specific and really amounts to inactionable puffery. In other words, the advertising campaign is loaded with the meaningless language and imagery intended to sell as much of this chemical shitstorm as possible.

Turning to the main event, calling it "diet" Coke is not misleading. That label refers to the drink's low caloric content, and "it does not convey a more general weight loss promise." At oral argument on this appeal, the plaintiffs' lawyer insisted that research proves that Diet Coke actually causes you to gain weight. That argument is not referenced in this opinion. Rather, the point here is that calling it a "diet" product is legal since it "connotes simply that the 'diet' version of the drink is lower in calories than the 'non-diet' version of the drink."

Friday, July 5, 2019

Court offers guidance on filing documents under seal

The Second Circuit has provided guidance on when it is appropriate for district courts to seal sensitive litigation material. It does so in the context of highly-publicized sexual misconduct allegations involving some well-known individuals, including Alan Dershowitz.

The case is Brown v. Maxwell, issued on July 2. The procedural history is complex. In 2008, financier Jeffrey Epstein pleaded guilty to sexual misconduct charges. Two of his victims sued the government seeking to nullify the plea agreement, claiming the government failed to inform and consult with them in the process leading up to the plea deal. Meanwhile, other victims (including Virginia Giuffre) petitioned the court to join that case, advancing new allegations against other prominent individuals, including Dershowitz,who worked on Epstein's legal defense. Dershowitz moved to intervene, successfully striking the allegations against him as immaterial, scandalous, et al. What next happened was that Giuffre sued Ghislaine Maxwell, who was among the notables accused of sexual misconduct. In the Giuffre case, the SDNY allowed the parties control over which documents to file under seal. Maxwell and Guiffre next settled their case after they briefed the summary judgment motion that Maxwell filed. The entire summary judgment motion was filed under seal. Dershowitz next petitioned the court to unseal that motion to demonstrate that Giuffre made up the allegations against him. The district court denied the motion to unseal the material.

The Court of Appeals (Cabranes, Pooler and Droney) resolves the appeal this way:

1. As for the summary judgment materials, the law presumes they are filed openly and not under seal, and that the court must arrive at specific and on-the-record findings that a narrowly-tailored sealing is necessary to preserve higher values. That did not happen here. The fact that the court denied the motion for summary judgment in the Maxwell case does not mean the materials may be kept under seal. The district court also failed to review the documents individually and make a particularized finding that the documents must remain under seal "to preserve higher values." The Court of Appeals decides to simply order that the summary judgment documents be unsealed for all the world to see.

2. As for the remaining sealed material, the Court of Appeals notes the presumption that judicial records should be open to all. Documents relating to motions to quash trial subpoenae and to exclude certain deposition testimony are therefore entitled to the public access presumption, as the public has the right to know how judges are resolving issues. In other words, documents related to judicial decision-making are usually available to all. But it is not clear why the district court kept these documents under seal. This issue returns to the district court to properly determine what documents may remain under seal.

The Second Circuit offers some commentary on all of this, as it shares the district court's concern that court files may be used to "promote scandal arising out of unproven potentially libelous statements." We know that anyone can say anything against anyone, even under oath. The Court notes that judges may issue protective orders forbidding dissemination of certain material to protect people from unfair embarrassment, etc. Trial judges may also note on the record that certain accusations lack credibility. And, there's always sanctions for lawyers and parties who abuse the process. The Court of Appeals also offers "a cautionary note" stating that materials submitted to a court may or not be true, and "do not reflect the court's own findings." This is all the more problematic because few people are actually prosecuted for perjury even when they file false affidavits. Also, court filings are susceptible to fraud, and you really can't sue someone for defamation for statements made in a court proceeding. The Court emphasizes that the media "does the public a profound disservice when it reports on parties' allegations uncritically." The Court concludes, "we therefore urge the media to exercise restraint in covering potentially defamatory allegations, and we caution the public to read such accounts with discernment." When the media or the public reads this cautionary tale or follows the Court's advise is another story.

Friday, June 28, 2019

Supreme Court will not second-guess partisan gerrymandering

There are two kinds of constitutional cases: those that adjudicate individual rights and those that clarify the ground rules for governance. The first category of cases usually gets more attention than the second, as more people are interested in the rights of flag burners than issues relating to the separation of powers. But the decision handed down yesterday on the constitutionality of legislative districts and gerrymandering is pretty important, because it affects who represents us in Congress.

The case is RUCHO v. Common Cause, issued on June 27. The Court decides 5-4 that the federal courts have no oversight into how state legislatures apportion congressional districts. Here's some background: each state gets a certain number of seats in Congress, depending on population. New York, California, Florida and Texas get many seats, as they are the most populous states. Wyoming, Alaska, etc. get fewer seats. Overall, there are 435 seats in the House of Representatives, and that number remains static. So the number of congressional seats for each state is a zero-sum game. What one party gets in the way of a congressional seat is taken away from the other party.

In Virginia, the state legislators who drew up the congressional district boundaries told their mapmakers they wanted more Republican seats than Democratic seats. This was pure partisanship. The Republicans then manipulated the boundaries to ensure they got more seats than the Democrats even thought he Democrats got more votes statewide than the Republicans. As Jeff Spicoli said in discussing the American Revolution, this may be bogus way to run the government. But Chief Justice Roberts said the constitutional framers did not envision any federal court oversight into this process and that they themselves futzed around with legislative districts. "To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers' decision to entrust districting to political entities." Partisan gerrymandering, therefore, is now considered a "political question" that extends beyond the reach of federal court jurisdiction.

I don't mean to be cynical here, but the five justices who signed onto this ruling are Republicans, the same party that is now benefiting from the partisan gerrymandering. The four dissenters are Democrats, now on the losing side of this issue, even though the Democrats control the House of Representatives at the moment.

Justice Kagan dissents. She says that partisan gerrymanders deprive citizens of their right to participate equally in the political process, and that the lower courts have devised ways for the courts to resolve these issues under constitutional guidelines. She really attacks the majority's reasoning here. She concludes, "of all the times to abandon the Court's duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court's role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent."

Thursday, June 27, 2019

Holocaust painting case loses on laches grounds

In 2016, Congress enacted a statute that would allow people to recover artwork and other property lost during the Holocaust era, when Jews fled Germany and the Nazi regime seized their possessions. As the statute seems to mete out justice over events that took place more than 70 years ago, and since it does not eliminate certain equitable defenses, it creates a built-in problem: when is a claim not timely or fair under the statute?

The case is Zuckerman v. Metropolitan Museum of Art, issued on June 26. The plaintiff is the great-grandniece of a German couple who sold off a priceless Picasso painting (The Actor) in order to finance their escape from Germany. The painting is reproduced below. An art dealer loaned the painting to the Museum of Modern Art in 1939, and after it changed hands a few more times, the painting was donated to the Metropolitan Museum of Art in 1952. This lawsuit seeks to have the painting returned to the heirs of the original owner, claiming the 1938 sale of the painting to finance the escape from Germany was made under duress. This case was filed in 2016, six years after the plaintiff demanded that the painting be returned.

The plaintiff loses the case on the laches theory. Laches is similar to a statute of limitations defense, but different. It says you cannot win the case if there was "unreasonable, prejudicial delay in commencing suit," where the plaintiff "has inexcusably slept on his rights so as to make a decree against the defendant unfair."

The Court of Appeals (Katzmann, Livingston and Droney) says the delay in this case was unreasonable. The original owners of the painting did not try to re-acquire the painting after they sold it in 1938. While it may have been reasonable to forego any claim to recover the painting during World War II, "it is simply not plausible that the Leffmans and their heirs would not have been able to seek replevin of the Painting prior to 2010. What is more, the Museum would suffer prejudice should this case proceed, as witnesses are dead, memories have faded and questionable hearsay will not resolve this issue. And there are no first-hand witnesses who can testify about the Museum's affirmative defenses to this case.

Tuesday, June 25, 2019

Court allows vulgar trademark to proceed under the First Amendment

A slow-moving revolution is taking place in First Amendment jurisprudence over the government's right to regulate certain forms of offensive commercial speech. This is taking place in the trademark context, so people are not noticing, but it furthers the Supreme Court's bedrock insistence that the government cannot discriminate among speakers on the basis of viewpoint.

The case is Iancu v. Brunetti, issued on June 24. Some background first: In Matal v. Tam, the Supreme Court a few years ago declared unconstitutional the Lanham Act’s ban on registering marks that “disparage” any“person[ ], living or dead.” The Lanham Act is a federal law that regulates copyrights. In that case, the Court said the government could not deny a trademark to a musical group called The Slants even thought the government believed the name was offensive to Asians. This time around, the case before the Court involves a clothing line that uses the trademark FUCT. Say it out  loud and you'll see why the government did not want to give the company a trademark. Justice Kagan notes that the brand name is “the equivalent of [the] past participle form of a well-known word of profanity.” Is that denial legal?

It is not, the 7-2 majority says. Just as the government could not deny a trademark to The Slants on the ground that the name was too offensive, then it cannot deny a trademark to FUCT on the ground that the name is "immoral or slanderous." What is "immoral or slanderous"? Let's turn to the dictionary. If you read Supreme Court rulings, you know they consult the dictionary all the time to decipher the meaning of ordinary words.  Judge Kagan writes:

The meanings of “immoral” and“scandalous” are not mysterious, but resort to some dictionaries still helps to lay bare the problem. When is expressive material “immoral”? According to a standard definition, when it is “inconsistent with rectitude, purity,or good morals”; “wicked”; or “vicious.” Webster’s New International Dictionary 1246 (2d ed. 1949). Or again, when it is “opposed to or violating morality”; or “morally evil.” Shorter Oxford English Dictionary 961 (3d ed. 1947). So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality,but not marks that denigrate those concepts. And when is such material “scandalous”? Says a typical definition, when it “giv[es] offense to the conscience or moral feel ings”; “excite[s] reprobation”; or “call[s] out condemnation.” Webster’s New International Dictionary, at 2229. Or again, when it is “shocking to the sense of truth, decency,or propriety”; “disgraceful”; “offensive”; or “disreputable.” Funk & Wagnalls New Standard Dictionary 2186 (1944).

So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar.
That's a good way to determine if the government is discriminating on the basis of viewpoint. Positive, happy trademarks are OK. Not vulgar ones that violate contemporary moral standards. The Court notes a few examples of trademarks that the government denied on the basis of these moral standards, such as those conveying approval for drug use (YOU CAN’T SPELL HEALTHCARE WITHOUT THC for pain-relief medication, MARIJUANA COLA and KO KANE for beverages). But anti-drug messages are usually approved.

Justice Sotomayor dissents in part, along with Justice Breyer. It's the rare case when Justices Kagan and Sotomayor and Breyer are on opposite ends of a Supreme Court opinion. Sotomayor writes:

The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U. S. C. §1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.

The coming rush to register such trademarks—and the Government’s immediate powerlessness to say no—is eminently avoidable. Rather than read the relevant text as the majority does, it is equally possible to read that provision’s bar on the registration of “scandalous” marks to address only obscenity, vulgarity, and profanity. Such a narrowing construction would save that duly enacted legislative text by rendering it a reasonable, viewpoint-neutral restriction on speech that is permissible in the context of a beneficial governmental initiative like the trademark-registration system. I would apply that narrowing construction to the term “scandalous” and accordingly reject petitioner Erik Brunetti’s facial challenge.

Monday, June 24, 2019

Supreme Court applies Batson to order a new trial in capital murder case

A lopsided Supreme Court majority has ordered a new trial for a criminal defendant who has already been tried six times for capital murder, ruling that the sixth trial violated the defendant's rights under the Equal Protection Clause because the prosecutor was motivated by discriminatory intent in striking a black woman from the jury. Relevant to this holding was the Court's finding that the prosecutor had a history of racially-discriminatory juror selection practices in this case.

The case is Flowers v. Mississippi, decided on June 21. The vote was 7-2. The same lead prosecutor handled all six trials. The Supreme Court says, "in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck[.]"  At the sixth trial, the state "engaged in dramatically disparate questioning of black and white prospective jurors" and it "then struck at least one black prospective juror, . . . who was similarly situated to white prospective jurors who were not struck by the State"

Under Supreme Court precedent, the Equal Protection Clause is violated when prospective black jurors are excluded from sitting on the case because of their race. That's the Batson case, from 1986. Parties raise Batson challenges during jury selection, and when that happens, the other side has to advance a race-neutral reason for excluding the juror. The trial court's ruling on that issue is reviewed for an abuse of discretion on appeal.

The Supreme Court orders a new trial for Flowers because of the significant racial disparity in the potential jurors who were sent home. Another reason for this was the questioning during the sixth trial, when prosecutors struck Carolyn Wright, purportedly because she knew several defense witnesses and had worked at the same store where Flowers' father had worked. But, Justice Kavanaugh writes for the majority, white prospective jurors who also had relationships with members of Flowers' family were not hit with follow-up questions in order to explore the depth of those relationships.

Justice Thomas dissents. After taking apart the majority's reasoning on the Batson challenges of this case, determining that the prosecutor had race-neutral reasons for excluding the black jurors, he restates his objection to the Batson principle and says "the entire line of cases following Batson is a misguided effort to remedy a general societal wrong by using the Constitution to regulate the traditionally discretionary exercise of peremptory challenges." Thomas said this in 1998 and he says again in this case. While some Justices in the past have suggested eliminating peremptory strikes altogether, Thomas does not see it that way, as "the peremptory system has always been held essential to the fairness of trial by jury," and the basic premise for eliminating peremptory challenges, "that a juror's racial prejudices can make a trial less fair, has not become 'obsolete.'" Rather, Thomas says, the racial composition of a jury matters because racial biases, sympathies, and prejudices still exist." Under the peremptory challenge system, "the Court continues to apply a line of cases that prevents, among other things, black defendants from striking potentially hostile white jurors."

Friday, June 21, 2019

Supreme Court upholds constitutionality of war memorial cross on public property

The Supreme Court has held that a huge war memorial in the form of a cross does not violate the Establishment Clause. In the course of its ruling, the 7-2 majority adjusts its jurisprudence in the area of church-state separation.

The case is American Legion v. American Humanist Association, issued on June 20. The memorial was built in 1925 in the aftermath of World War II. This legal challenge came nearly 90 years later. If you've been following Supreme Court cases in this area over the years, you know the Court has devised a variety of tests in assessing whether certain governmental action violates the Establishment Clause. We have the Lemon test from 1971, which asks whether the display (1) has a secular purpose, (2) has a principal or primary effect that neither advances nor inhibits religion, and (3) whether it fosters an excessive governmental entanglement with religion. What the Court has learned over the years is that the Lemon test is difficult to apply in certain cases, and the Court sometimes does not invoke it all in religion cases.

The majority confirms again in this case that Lemon is not an all-purpose test, particularly when someone attacks the constitutionality of an existing memorial that has religious overtones. For starters, it is difficult if not impossible to know what the original purpose of the monument was, as the relevant witnesses died long ago and there may not be records on the issue. Also, the "message" of the monument may change over time, such as with the Statue of Liberty, which began as a monument to our relationship with France and only decades later came to be seen as a "beacon welcoming immigrants to a land of freedom," Justice Alito writes. So, the Court says, when dealing with the constitutionality of established memorials, monuments, symbols and practices, "the passage of time gives rise to a strong presumption of constitutionality." In plain English, older memorials and symbols are more likely to pass constitutional muster than new ones. This is a new concept for the Court.

That presumption can be overcome, but not in this case. The large cross is constitutional because "the image of simple wooden crosses that originally marked the graves of American soldiers killed in the war" became an image of their sacrifice, and over time, monument has acquired historical significance to the community. Finally, "it is surely relevant that the monument commemorates the death of particular individuals. It is natural and appropriate for those seeking to honor the deceased to invoke teh symbols that signify what death meant for those who are memorialized. In some circumstances, the exclusion of any such recognition would make a memorial incomplete," such as a Holocaust memorial that includes the Star of David or other symbols of Judaism.

In the end, while a cross is surely a Christian symbol, under the new standard set forth in this ruling, over the dissents of Justices Ginsburg and Sotomayor, it does not violate the Constitution.

Thursday, June 20, 2019

Supreme Court issues narrow "state action" free speech ruling

The Supreme Court has ruled that a documentary filmmaker cannot sue a community access organization under the First Amendment, determining that the defendant is not a governmental actor and therefore cannot be held liable for any constitutional violation.

The case is Manhattan Community Access Corp. v. Halleck, issued on June 17. Cable television systems regularly feature public access programming, where members of the community can put on their own productions. The State of New York requires that channels be set aside for that purpose. The Manhattan Neighborhood Network was responsible for operating the public access channels in Manhattan. When the defendant suspended Halleck from using the public access channels after people complained about her film about MNN's neglect of the Harlem community, she sued in the Southern District, which ruled against her. The Second Circuit reversed and ruled in Halleck's favor. Halleck's victory is now gone. (Halleck is a former client of mine by the way; we sued the City of Kingston in 2008 over a different free speech violation).

The 5-4 majority notes that the First Amendment only regulates governmental behavior. Private entities cannot be sued under the First Amendment. How do we know when an entity is public or private? The Court notes that private entities are held to constitutional standards when they take on a traditional governmental function. Those functions are few and far between and include running elections. Most private entitles are not "state actors," including running nursing homes, electrical service. In a nutshell, conservatives like limited state action in these cases, and liberals like broad state action. Operating public access channels on a cable system is not a traditional governmental function, Justice Kavanaugh writes for the majority, so Halleck loses the case.

In dissent, Justice Sotomayor views this case from an entirely different angle, stating that the government appointed a private organization to administer a constitutional public forum, which cannot discriminate against speech based on viewpoint. Her is how Sotomayor sums it up:

This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public-access television channels when it granted a cable franchise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City contracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other.

Tuesday, June 18, 2019

Court of Appeals reinstates lawsuit that trial court dismissed as sanction for noncompliance

The Court of Appeals has reinstated a pro se lawsuit that the Eastern District dismissed as a sanction for the plaintiff's failure to meet certain deadlines. The Court of Appeals also lifts a $300 sanction against the plaintiff.

The case is Jefferson v. Garcia, a summary order issued on June 18. Plaintiff sued the county over police misconduct. He did not have a lawyer in the district court, which can lead to problems with pro se litigants are not versed in deadlines and probably don't realize how important it is to satisfy deadlines. The case was delayed for a multitude of reasons, including the County's own failure to meet deadlines. At some point, the County filed a motion to dismiss because plaintiff did not provide his portion of the pre-trial order, which is a complicated filing that I am sure has flummoxed many a pro se plaintiff. The magistrate judge ultimately granted everyone more time to complete the pre-trial order, but she sanctioned plaintiff 300 bucks to cover the County's cost of filing the motion in the first place. In the end, the entire case got dismissed because Jefferson was unable to pay the $300.00.

The Court of Appeals (Calabresi, Droney and Underhill [D.J.]) reinstates the case and vacates the sanction to boot. We have a five-part test in determining whether the trial court properly exercised its discretion in dismissing a case for failure to comply with a court order:

district court must weigh five factors: (1) the duration of the plaintiff’s failure to comply with the court order, (2) whether [the] plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court’s interest in managing its docket with the plaintiff’s interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
Four of the five factors weigh against dismissal, the Court of Appeals says, in part because plaintiff's delays in serving his pre-trial order materials was not too long (42 days in the face of delays by everyone else, including the trial court), and while the trial court gave plaintiff multiple warnings, "the county's own noncompliance and requests for extensions undermine its claim of prejudice." Plus, the trial court did not consider the adequacy of lesser sanctions, as plaintiff was not even able to afford paying the sanction.

As for the $300.00 sanction, that is also vacated, as the Court of Appeals is not even sure under what legal authority the magistrate judge imposed it. "Instead, the sanction order stated only that the magistrate judge would not 'countenance [Jefferson’s] conduct' of waiting until the day the pretrial order was due to request an extension for filing it. The magistrate judge acted sua sponte in imposing that sanction, so the issue was not briefed or argued. Due process requires that a litigant 'must be forewarned of the authority under which sanctions are being considered, and given a chance to defend himself against specific charges.'” On top of that, "we can discern no legal authority under which the magistrate judge could have imposed the monetary sanction under the circumstances. Jefferson did not violate any rule or court order in filing a motion for extension of the deadline. Rather, the sanction order required him to reimburse the County for preparing a motion that was filed prematurely."

This is a total win for the plaintiff and a total loss for the trial court, which seemed to act without authority, maybe because, as the Second Circuit notes in a footnote, plaintiff is a serial litigant, having brought at least 19 lawsuits in the Eastern District since 1994. In any event, plaintiff will get his day in court.

Monday, June 17, 2019

Second Circuit outlines how to win (and lose) non-employment equal protection claims

In this case, the Court of Appeals tells us all we need to know about how to resolve equal protection cases when the government is accused to singing someone out in the provision of government services.

The case is Hu v. City of New York, issued on June 13. Plaintiffs are an Asian construction worker and Asian-owned companies who perform work in New York City. They claim that an Assistant Chief Inspector, Burkart, selectively enforced the building codes against plaintiffs out of anti-Asian animus, in part through a personal vendetta against Asians in general and Hu in particular. Plaintiffs claim Burkart has harassed and belittled Asian workers while constructive construction websites, and that he has singling them out for code violations, acts which have harmed the plaintiffs financially and cost them prospective customers.

Plaintiffs pursue two avenues for relief: they invoke LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980), which requires proof of disparate treatment and impermissible motivation (such as race), and Village of Willowbrook v. Olech, 528 U.S. 562 (2000), where the Supreme Court recognized "class of one" claims, which permits equal protection claims where the plaintiff is shafted by the government and others who are nearly identical to the plaintiffs' situation are left alone and not hassled. This case examines the interaction between Olech and LeClair.

These two precedents "offer distinct pathways for proving a non-class based Equal Protection violation," the Second Circuit (Jacobs, Lynch and Hall [D.J.]) says. Unlike a malice-based LeClair claim, an Olech claim does not require proof of the defendant's subjective ill-will toward the plaintiff, who can win under Olech on the basis of similarity alone. But in order to prove an Olech claim, that similarity must be almost identical to the plaintiff's situation, requiring almost a mirror-image.

Plaintiffs have made out a LeClair claim, the Second Circuit rules, reversing the district court on this issue. They argue that Burkart cited them for the same conduct (having a pool of standing water) on a job site without similarly charging a white company at the same job site. The Court says this is a close case, and discovery may show that there were meaningful distinctions among the alleged misconduct by the Asian and white companies. But for now, the plaintiffs have case, as the fact-intensive nature of the "similarly-situated" inquiry cautions against deciding whether two comparators are similarly-situated on a motion to dismiss.

Plaintiffs do not have an Olech claim, however, as none of their proffered comparators satisfy the more stringent similarly standard under that case. It looks like the allegations in the complaint are too sparse to satisfy Olech. "The Amended Complaint is silent as to a whole host of potential factors that could legitimately justify Burkart's behavior, including, inter alia, whether the white workers were engaged in the same type of work as the plaintiffs, the length of time between Burkart's visits to the 34th Avenue Jobsite, and the identity of the white workers' employer." This case reminds us just how difficult it is to win an Olech claim, or to even plead it plausibly.

Finally, plaintiffs had a plausible Section 1981 claim. These claims carry a similar burden of proof to claims under LeClair. Plaintiffs may proceed to discovery in part through allegations that Burkart has enlisted the help of other government employees by searching Department of Buildings databases to find construction firms that employ Hu, and the then inspect those worksites. It also looks like Burkart has bragged about shutting down Hu's worksites throughout the city. The complaint asserts that Burkart has been angry at Hu for years ever since Hu filed a complaint with the Department of Buildings against Hu in 2011, alleging that Burkart was enforcing the building code in a discriminatory manner.

Tuesday, June 11, 2019

Supreme Court to determine causation standard for Section 1981 discrimination cases

The Supreme Court decided on Monday morning that it will determine the scope of Section 1981, the federal statute that prohibits racial discrimination in the making of contracts. Section 1981 governs employment discrimination claims. This will be the third time in a decade the Court will take a look at the causation standard for employment discrimination cases.

The case is Comcast Corp. v. National Association of African American-Owned Media, a case out of the Ninth Circuit, which held that the statute does not require "but for" causation but "motivating factor" causation. This may seem like a meaningless distinction, but if you handle employment discrimination cases, you know exactly what this means. But-for causation means that race was the determining factor in the adverse decision, and that without consideration race, the adverse decision would never have happened. Motivating-factor means that race was one of several motives, even if the racial motive did not by itself make the difference.

The statute provides that “[a]ll persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). It further defines “make and enforce contracts” as including “the making, performance, modification, and dermination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”

Enacted in the wake of the Civil War, Section 1981 does not articulate a causation standard. Other civil rights statutes do explicitly set forth a standard. Under Title VII's prohibition against racial, gender, national origin and religious discrimination, these characteristics cannot be a "motivating factor" in the adverse decision. We call these "mixed motive" cases. Under Title VII's antiretaliation provision, however, Congress used different language, stating that no one may suffer retaliation "because of" their protected activity under Title VII. In Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013), the Supreme Court said "because of" means determining factor, not motivating factor. The same analysis governs age discrimination claims under the Age Discrimination in Employment Act, as per the Court's ruling in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), as the ADEA also says no one may suffer discrimination "because of" their age.

 In Comcast, the Ninth Circuit went with the "motivating factor" test in Section 1981 cases, reasoning:

Section 1981 guarantees “the same right” to contract “as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). This is distinctive language, quite different from the language of the ADEA and Title VII’s retaliation provision, both of which use the word “because” and therefore explicitly suggest but-for causation. Charter contends that the most natural understanding of the “same right” language is also but-for causation. We disagree and are persuaded by the reasoning of the Third Circuit in Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009). There, albeit in dicta and without formally resolving the issue, the court reasoned that “[i]f race plays any role in a challenged decision by a defendant, the plain terms of the statutory text suggest the plaintiff has made out a prima facie case that section 1981 was violated because the plaintiff has not enjoyed ‘the same right’ as other similarly situated persons.”

If discriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff, even if it is merely one factor and not the sole cause of the decision, then that plaintiff has not enjoyed the same right as a white citizen. This, we conclude, is the most natural reading of § 1981. Therefore, unlike the ADEA or Title VII’s retaliation provision, § 1981’s text permits an exception to the default but-for causation standard by virtue of “an indication to the contrary in the statute itself.”
 The certiorari petition in Comcast argues that the Ninth Circuit got it wrong and that it should have applied the common-law "but-for" test governing causation in torts cases unless Congress intended that another causation standard applies to that particular statute.

You may ask, if employment discrimination plaintiffs can bring their lawsuits under Title VII, which employs the more plaintiff-friendly "motivating-factor" test, why should it matter what the Supreme Court does under Section 1981? The answer is that (1) Section 1981 does not require any EEOC filing/administrative requirements before the plaintiff can bring a lawsuit, which requirements only prolong the case as the EEOC needs at least six months to investigate the claim, (2) the statute of limitations under Title VII is 180 or 300 days, depending on what state you live in, and Section 1981 claims carry a much longer statute of limitations; (3) unlike Title VII, plaintiffs under Section 1981 may sue employers with fewer than 15 employees; and (4) there are no caps under Section 1981 for pain and suffering, unlike Title VII.

If the Supreme Court adopts the "but-for" test for Section 1981 claims, litigants may face an anomaly: in employment discrimination cases brought under Section 1981 and Title VII, the jury may have to resolve both claims under different standards of proof, with the same evidence. How is the jury going to thread the needle? How are attorneys going to discuss this in summation? What will the jury instructions look like? 

Friday, June 7, 2019

Court of Appeals upholds national origin discrimination claim against the State of New York

The Second Circuit has upheld a jury verdict finding that a state agency discriminated against a financial analyst because of his national origin. The Court rejects the argument that the plaintiff did not produce enough evidence to support his discrimination. It also rejects the state's argument that the verdict form demonstrated jury confusion.

The case is Saber v. State of New York, a summary order issued on June 5. I helped defend the verdict on appeal. Doris G. Traub and Margaret McIntyre tried the case before Judge Schofield. I wrote about this case at these links, discussing the trial court's post-trial ruling that reduced the $2.5 million pain and suffering award to $125.000.

The state appealed from Judge Schofield's rulings, claiming plaintiff's Iranian heritage had nothing to do with its refusal to promote him, and that it did not retaliate against plaintiff with a series of adverse actions after he filed a charge of discrimination with the EEOC. The Iranian connection derives in part from the financial agency's mandate to crack down on banks that do business with Iran. Without much discussion, the Second Circuit (Lohier, Calabresi and Donnelly [D.J.]) says the trial court got it right in finding the record contains enough evidence of intentional discrimination. Some of that evidence included slurs about  Plaintiff hiding "yellow cake" in his workspace. We normally associate "yellow cake" with nuclear weapons. Iran's alleged nuclear ambitions were in the news at the time. The jury probably figured that plaintiff is a distinguished financial analyst; why should he put up with this?

The state also argued that the jury was confused because the trial court had it answer a question on the verdict form asking when it was clear plaintiff was first denied the promotion. That was actually an advisory question to help the trial court calculate lost wages. The jury's answer was October 2011, when the agency was first created. While the state said that answer made no sense because the actual decision to deny plaintiff the promotion took place afterwards, the trial court said (and the Second Circuit agreed) that October 2011 was a good answer because the jury was stating plaintiff never had a chance with the agency from the outset. Plus, this was an advisory verdict question; the answer was not binding on the court.

The trial court did award plaintiff lost wages, but the state challenged that on appeal as well, claiming the calculations ran afoul of guidelines in the state's Personnel Management Manual. The Court of Appeals deals with that argument this way: "But DFS failed to make the District Court aware of the Manual and relies on it for the first time only on appeal, and in any event the District Court had some discretion in using the salaries of comparators to determine backpay in this case." The Circuit cites Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 166 (2d Cir. 1998), for the proposition that "salaries of comparators may be used to calculate backpay 'only insofar as the plaintiff lays a sufficient foundation to permit the reasonable inference that his salary would have matched…the salaries of others.”

Wednesday, June 5, 2019

Disability discrimination verdict is upheld

Appellate courts defer to the jury's credibility determinations. Whom do we believe? Whom do we disbelieve? Verdicts get appealed all the time. The Second Circuit will not upset a jury verdict unless it has a very good reason to do so. This verdict got affirmed because the Court of Appeals deferred to the jury.

The case is Presumey v. Board of Education, a summary order issued on May 30. Plaintiff was a schoolteacher. She claims the school district failed to accommodate her disability. She was a professional assistant who worked with disabled students. When she injured her shoulder at work, she requested light duty. The district told her there was no light duty assignment in her job class and it ultimately fired plaintiff on the basis that her medical condition made it impossible to perform the essential functions of her job. This language tracks the Americans with Disabilities Act, which says the employer must accommodate a disabled employee if the accommodation does not eliminate an essential job function.

At trial, the district said that the essential functions of a professional assistant include lifting, toileting and feeding students. True, plaintiff could not perform those functions, but she said they were not essential to her job. While defendant at trial put on witnesses who said these duties were essential to plaintiff's position, and that the the job description and handbook said that assistants like plaintiff have to take on these responsibilities, plaintiff controverted that evidence at trial. She noted that her students had a variety of disabilities, some of whom did not require lifting. Not all assistants had to lift and toilet the students, as "those functions were waived for certain professional assistants." Other assistants got light duty and were assigned to work with students in wheelchairs, which did not require lifting. You get the picture. Even the handbook is not controlling on this issue.

Since the trial evidence did not compel a finding that lifting and toileting students constituted an essential job requirement, the Court of Appeals (Lynch, Lohier and Cogan [D.J.]) allows the verdict to stand. That distinguishes this case from Stevens v. Rite Aid Corp., 851 F.3d 224 (2d Cir. 2017), where the Court of Appeals threw out a huge verdict in favor of a pharmacist who had needle-phobia and was therefore unable to perform an essential job duty: administering vaccines to customers.

What does this case teach us? Even if documents appear to support the defendant's case, the plaintiff can get around that if she finds the right witnesses to show that management did not always follow its light duty policies. 

Another interesting side note about the trial: it looks like plaintiff called a co-worker, Eileen Dailey, to the stand. Dailey had the same job as plaintiff but, plaintiff told the jury, Dailey did not have to do any lifting even though Dailey was disabled. Of course, if true, this argument would help plaintiff's case. Plaintiff called Dailey to the stand to refute the district's position that, despite Dailey's physical infirmities, she was in fact able to lift and toilet students. If Dailey got light duty, why not plaintiff? Plaintiff's counsel challenged the veracity of Dailey's testimony in arguing to the jury that Dailey was unable to perform these functions in light of her disabilities. The court rulings in this case are not clear on what exactly plaintiff's counsel did when Dailey was on the stand, but plaintiff testified that Dailey's left arm and leg were affected by paralysis, and the trial court ruling says Dailey had "an obvious foot drop, clearly walked with difficulty, and did not move her left arm at all." Plaintiff's counsel told the jury, "you saw with your own eyes what the truth is about that lady." It must have been uncomfortable to attack Dailey's testimony that way, but as one trial expert once said during a trial practice CLE, "trial lawyers don't go to heaven."

Monday, June 3, 2019

Title VII filing requirements are not jurisdictional

There are rules, and then there are rules. In litigation, some rules are more rock-solid than others. Some requirements must be satisfied before the case can go any further, and some rules are mandatory but the case can proceed anyway if the opposing party does not object to the oversight. This case involves these rules in the context of Title VII's requirement that the plaintiff must file a charge with the EEOC before she can litigate the case in court.

The case is Fort Bend County v. Davis, issued by the Supreme Court on June 3. If you suffer discrimination on the basis of race, gender, color, religion or national origin, you cannot go to court unless you have exhausted the EEOC filing requirements. In New York, that means you have 300 days to file with the EEOC, which then investigates the case and may try to reach a settlement. If those efforts fail, you can go to court within 90 days after the EEOC closes out the file.

The EEOC filing requirements are not difficult, but you have to set forth the basis for the alleged discrimination. In this case, plaintiff brought an EEOC charge alleging sexual harassment and retaliation for complaining about the harassment. She then tried to amend the charge to allege religious discrimination after she was fired for missing work on a Sunday and going to church instead. On the EEOC "intake questionnaire," she wrote in "religion" as the basis for the discrimination, but she did not formally amend her charge; that oversight was apparently a mistake on plaintiff's part. The employer presumably did not notice this error until late in the game, when it moved to dismiss plaintiff's charge because she did not properly complete the form.

What is the effect of Davis's failure to complete the form properly? Did the employer properly object, or was that objection waived? The courts place errors like Davis's into two piles: jurisdictional errors and claim-processing errors. Jurisdictional requirements are mandatory, and the court can dismiss the case even if the other side does not not object, or if they take forever to object. An example of this is the requirement that federal courts cannot hear claims over which they do not have subject matter jurisdiction. Claim-processing rules are also mandatory, but the objection to a bad filing can be waived.

We know that a court rule or filing requirement is jurisdictional or claim-processing by reviewing the statute. The Court says this:

While not demanding that Congress “incant magic words” to render a prescription jurisdictional, the Court has clarified that it would “leave the ball in Congress’ court”: “If the Legislature clearly states that a [prescription] count[s] as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue[;] [b]ut when Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”
Under this standard, the EEOC filing requirement is not jurisdictional but a claim-processing rule. "Title VII’s charge-filing provisions 'speak to . . . a party’s procedural obligations.' They require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. . . . Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts."

Friday, May 31, 2019

Here is how the interactive process works under the Americans with Disabilities Act

This case highlights a loophole in the Americans with Disabilities Act that employees may be unaware of. The Court of Appeals affirms the grant of summary judgment where the plaintiff had to miss work because of a disability. She loses because she cannot show there was a way for her employer to reasonably accommodate her, and plaintiff rejected a position that management did offer to her.

The case is Barton v. Unity Health System, a summary order issued on May 28. Plaintiff was a dental hygienist. She was unable to work because of her disability. When her doctor cleared her to resume working in February 2013, she wanted to be transferred to one of two positions that became available during her medical leave. That can be a good argument in an ADA case. But it does not work here, because plaintiff did not update her employer about her condition while she was out on leave, which means her employer did not know whether or when she might be cleared to return to work. Nor did management know what restrictions might enable her to return to work.

This analysis applies a rule unique to disability discrimination cases: the interactive process. Under the ADA, if the plaintiff wants her employer to accommodate her disability, the employer should initiate the discussion by identifying positions that she might be able to fill. The employer then has to negotiate with the employee in good faith to see if that position will work for the plaintiff. But it does not look like plaintiff initiated the interactive process, leaving management in the dark about how to proceed. As the Court of Appeals (Cabranes, Walker and Hall) writes:

That Barton might have broached the possibility of a transfer as early as May 2012 is of no consequence. The Americans with Disabilities Act “envisions an interactive process by which employers and employees work together to assess whether an employee’s disability can be reasonably accommodated.” The evidence shows that Unity was prepared to engage in an interactive process when Barton went on indefinite medical leave in June 2012. After that point, however, Unity was unable to investigate Barton’s concerns, learn more about her disability, or discuss with her various potential accommodations. In the circumstances, Barton’s transfer request does not resemble the first step in an interactive process so much as an attempt to short-circuit whatever process Unity might ordinarily undertake.
What also hurts plaintiff's claim is that, when she sought to return in February 2013, Unity reviewed its vacancies and offered Barton a dental secretary position at one of its other locations. Barton rejected the position. "Though dental secretaries and dental hygienists perform different tasks, the new role would have allowed Barton to remain with Unity, maintain her seniority, and apply for any dental hygienist vacancies that arose in the future. In the circumstances, it appears that Unity made a good-faith effort to accommodate Barton. The law requires no more."

Thursday, May 30, 2019

Supreme Court outlines standard for retaliatory arrests

With little fanfare, the Supreme Court has issued an important ruling on retaliatory arrests, that is, how to resolve cases where someone claims the police arrested them in retaliation for their First Amendment speech. The Court sets forth a framework that seems to favor the police.

The case is Nieves v. Bartlett, decided on May 28. It all started in a remote part of Alaska, where about 10,000 maniacs show up once a year for Arctic Man, "an event known for extreme sports and extreme alcohol consumption," as Chief Justice Roberts writes. He goes on to describe Arctic Man in detail, mostly from the standpoint of morbid fascination, noting that alcohol and snowmobiles "do not always mix well." As I am learning from a recent biography on Roberts, this is the last place he would have gone to as a young man. Arctic Man looks like an Alaskan Beerstock. Anyway, plaintiff got arrested for disorderly conduct and resisting arrest after he told someone else they did not have to speak with the police. The charges were dropped and Bartlett filed this lawsuit.

The Supreme Court uses this case to set out a framework for deciding these cases. On one hand, you cannot be punished for the exercise of free speech. But the police can also arrest you if they have probable cause to believe you committed a crime. So this case involves a clash between the First and Fourteenth Amendments. The Court decides that the plaintiff cannot win a retaliatory arrest claim if the police have probable cause to arrest him. The idea is that if the police have probable cause, then there was an objective basis to arrest the plaintiff, speech or no speech. The Court notes that some people are even legitimately arrested because of their First Amendment speech. As Roberts states,

protected speech is often a “wholly legitimate consideration” for officers when deciding whether to make an arrest. Officers frequently must make “split-second judgments” when deciding whether to arrest, and the content and manner of a suspect’s speech may convey vital information—for example, if he is “ready to cooperate” or rather “present[s] a continuing threat.” Indeed, that kind of assessment happened in this case. The officers testified that they perceived Bartlett to be a threat based on a combination of the content and tone of his speech, his combative posture, and his apparent intoxication.
The Court makes a narrow exception to this rule for cases in which the police have probable cause to make arrests but typically exercise their discretion not to do so, such as in jaywalking cases.

For example, at many intersections, jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest.
The plaintiff in this case loses under this standard because he cannot show the officer who arrested him did so because of his protected speech in opposing police activity.

Justice Sotomayor dissents, arguing that the majority's new rule is needlessly complicated. The better approach, Sotomayor says, draws from established First Amendment retaliation cases in other contexts governed by the Supreme Court's ruling in Mount Healthy v. Doyle (1977), which says the plaintiff wins if his speech was a substantial or motivating factor in the adverse action. In those cases, however, the defendant wins if he can show he would have arrested the plaintiff even without the protected speech. This "timeworn standard is by no means easily satisfied," Sotomayor says.

Even in cases where there is “proof of some retaliatory animus,” if evidence of retaliatory motive is weak, or evidence of nonretaliatory motive is strong, but-for causation will generally be lacking. That is why probable cause to believe that someone was a serial killer would defeat any First Amendment retaliatory arrest claim—even if, say, there were evidence that the officers also detested the suspect’s political beliefs.

With sufficient evidence of retaliatory motive and sufficiently weak evidence of probable cause, however, Mt. Healthy is surmountable. Its orderly framework thus “protects against the invasion of constitutional rights” while burdening legitimate exercises of governmental authority only so far as is “necessary to the assurance of those rights.”

Tuesday, May 28, 2019

Court of Appeals holds the county jail must provide mentally-ill inmates with discharge planning

The Court of Appeals has ruled that two ICE detainees at the Orange County Jail can sue County officials over the lack of any discharge planning. This case has two significant holdings relating to the constitutional rights of pretrial detainees and the government's obligation to ensure they are not put out on the street post-lockup without a medical plan.

The case is Charles v. Orange County, issued on May 24. Both plaintiffs suffer from ongoing mental illnesses. Immigration authorities sent them to the Orange County Jail, where they received treatment for their mental health issues, including medication. After plaintiffs prevailed in their immigration cases, they went home to New York City, but without any discharge planning from the jail, which caused plaintiffs to decompensate and otherwise "suffer[] serious mental health consequences."

Building upon the constitutional principle that jails must provide inmates with medical care (Estelle v. Gamble, 429 U.S. 97 (1976)), the Court of Appeals (Lynch, Hall and Bolden [D.J.]) holds for the first time that jails must provide departing inmates with discharge planning. The Court says this planning constitutes "in-custody" care, which distinguishes this case from the those holding that the government owes you no medical obligations once you leave the facility. The point is that the discharge planning takes place before the inmate is released. The Court relies in part on guidelines from the American Psychiatric Association, which views discharge planning as part of in-custody care, as it "needs to begin as part of the initial treatment plan."

The Court also holds that the legal standard for cases like this holds the defendant jailers to an objective standard under the Fourteenth Amendment, and not the subjective standard under the Eighth Amendment. What does this mean? Convicted inmates who sue the jail for lousy medical treatment have to prove the defendants acted with subjective intent to harm the plaintiffs. This heightened evidentiary requirement recognizes the plaintiffs have already been convicted and have fewer rights than the rest of us. As for pre-trial detainees, however, they have not yet been convicted of anything, and therefore cannot be "punished" under the Constitution.

This means that plaintiffs' claim, alleging deliberate indifference to serious medical needs, will succeed if they prove either that "the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee's health." This standard is a new thing in the Second Circuit. In 2017, the Court of Appeals held in Darnell v. Piniero, 849 F.3d 17 (2d Cir. 2017), that pretrial detainees can win their cases if they show the defendant jailers knew or should have known the offensive jail conditions violated constitutional standards. (I briefed the appeal in Darnell). Darnell itself drew from a pro-plaintiff Supreme Court ruling, Kingsley v. Hendrickson, 135 S.Ct. 1039 (2015), which said pre-trial detainees alleging excessive force can prevail under the objective standard. Darnell applied that logic to conditions-of-confinement claims, and Charles v. Orange County applies the same to medical treatment cases.  

Wednesday, May 22, 2019

ADEA retaliation claim against Board of Education is reinstated

This ruling from the Second Circuit reinstates a retaliation claim under the Age Discrimination in Employment Act against the City of New York. Finding the complaint plausibly asserts a retaliation  case, the Court of Appeals issues a summary order that rules in favor of the plaintiff and sends this case back for the joyous discovery that litigators love, i.e., interminable depositions, discovery disputes, non-party subpoenas and motion practice. Along the way, the Second Circuit reiterates some important rules governing motions to dismiss retaliation cases.

The case is Massaro v. Board of Education of the City of New York, issued on May 21. Plaintiff brought a lawsuit in 2011 alleging age discrimination. The state court dismissed the case in 2014. While that case was pending, in 2012, plaintiff began to suffer the following hassles, resulting in this lawsuit:

● her classes were overcrowded;

● she was assigned a disproportionately high number of students with serious behavioral and developmental problems;

● she was assigned to classrooms with no temperature control, which were excessively cold in winter and extremely hot in summer;

● beginning in 2014, she was assigned a teaching schedule of four consecutive one‐hour classes, leaving her no time between periods to prepare for class or use the bathroom;

● two infractions were recorded in Massaro’s file that were not attributable to her, and she was improperly deemed to have been “excessively absent” based on absences she incurred while she was serving on grand jury duty.

Massaro named several teachers who were not subjected to each of the negative conditions listed above, along with their ages, which ranged from late 20s to about 50.
The City says plaintiff did not engage in "protected activity" under the ADEA because the prior lawsuit was filed in December 2011 and the bad stuff happened in 2013. But the Second Circuit "has previously measured the occurrence of a protected activity from mid‐litigation events, such as notifications to appear for a deposition or as a witness." The Circuit (Newman, Jacobs and Droney) cites Richardson v. New York DOCS, 180 F.3d 426, 446-47 (2d Cir. 1999), for that proposition, among other cases. This reasoning tightens up the timeline for plaintiff's retaliation case, always a good thing for plaintiffs who are fighting off a motion to dismiss.

As for whether the bad stuff is enough for a retaliation case, the Circuit again rules in plaintiff's favor, stating, Massaro alleged several actions that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The Court adds, "Although some of the conditions she complains of, considered individually, might reasonably be tolerated by many teachers, the allegation of their combination, alleged to have been imposed only on her, suffices to survive a motion to dismiss." This is an important principle in retaliation law: a few relatively minor acts of retaliation may add up to a real retaliation case.

Things get tricky on the causation element . Plaintiff's EEOC charge says the earliest date of the discrimination was August 2013. The 2011 state court lawsuit that plaintiff filed (which allegedly triggered the retaliation) was dismissed in May 2013. The bad stuff happened to plaintiff starting in August 2013. So we have a a three-month gap between protected activity and the adverse actions. The City claims that time-frame is too long to infer retaliation. That argument sometimes works. Not here. The Second Circuit employs a common-sense model when the plaintiff can show that management retaliated at the first available opportunity. In teacher discrimination cases, the Court of Appeals notes, the plaintiff gets some leeway in this regard.

In the context of a school calendar, judicial “experience and common sense,” Irrera v. Humpherys, 859 F.3d 196, 198 (2d Cir. 2017), permit the Court to recognize that May to August is summer break. In that context, it is plausible that August 2013, the start of a new semester, was the school personnel’s earliest opportunity to retaliate against Massaro following the dismissal of her 2011 lawsuit.

Tuesday, May 21, 2019

False arrest case over hallway arrest fails

Did I forget to mention that false arrest cases are the hardest Section 1983 cases to win? This case provides a good example.

The case is Ortiz v. City of New York, issued on May 21. Some anonymous caller told 911 that there was a dispute at the Ortiz residence. When the police showed up, they intervened in a dispute between Ortiz, his cousin and his sister, who told the police outside the apartment that Ortiz had assaulted her. The officer saw a scratch on this woman and arrested Ortiz. At some point, the charge must have been dismissed. As Judge Brieant used to say, that gives you a ticket to the courthouse. Except that the ticket may not get you to the destination. They might throw you off the train first.

Ortiz probably thought he had a great case. He argued that his arrest was illegal because it was the "fruit of the poisonous tree," which means it grew out of an unlawful entry into his apartment. We all know about "fruit of the poisonous tree," which normally applies when the police find something illegal in the course of an illegal search. But did you know this doctrine does not apply in Section 1983 claims? The Second Circuit said so in Jenkins v. City of New York, 478 F.3d 76, 91 n. 16 (2d Cir. 2007). These are also known as Townes cases, based on Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), which first set down this principle. Ortiz cannot use this argument to win his case.

Ortiz also argued his arrest violated the Fourth Amendment because there were no exigent circumstances permitting a warrantless arrest in the home. Not quite, says the Court of Appeals (Cabranes, Hall and Stanceu [D.J.]), because Ortiz was arrested in the common hallway of his apartment after he complied with a police directive to step into the hallway. Supreme Court authority in this area (Payton v. New York, 445 U.S. 573 (1980)) "protects intrusions into the home," not the common hallway.

There's a million ways to lose a false arrest claim. This case highlights some of the pitfalls. And the Second Circuit did not even get into qualified immunity, which provides the police an extra layer of protection if the law was not clearly established at the time of the arrest. The Second Circuit seems to suggest the law was clear at the time of Ortiz's arrest, so it just applies settled Circuit and Supreme Court authority without invoking the immunities.

Friday, May 17, 2019

When verdict forms go bad

After Winning Nearly $1M Verdict, Former Student Bullied for Years Will Face Retrial

“The window of opportunity for Supreme Court to fix the [jury verdict sheet] problem closed when the other jurors left the courthouse," the appeals court wrote. "Supreme Court's subsequent efforts, while well intentioned, were futile and ... our only course of action is to order a new trial."

Stephen Bergstein, Bergstein & Ullrich in New Paltz.
When Anthony Motta Jr. was in seventh grade, he was sitting in study hall doing work when another student came up from behind him and started choking him until he almost “blacked out,” Motta testified at a 2017 trial in Sullivan County Supreme Court.

“I was at the point of blacking out and he had mercy and let me go. I jumped up gasping for air … I ran to the office and notified them what happened,” he further told a jury, according to an appellate brief quoting his testimony.

He also told jurors that the boy who choked him was not disciplined, even after Motta’s mother reported what happened to the school’s principal.

The trial was thought to be the conclusion of a years-long lawsuit Motta and his parents brought against the school district, alleging that district officials and educators negligently supervised its students and didn’t protect Motta from what he testified was years of constant bullying and abuse, all through seventh grade, eighth grade and two attempts at ninth grade, which he repeated after failing classes.

Motta told jurors about how he was shoved into lockers and walls and spit on, about how bullies urinated all over a prized hat his father had given him, about how he was constantly called a “faggot,” a “pussy,” a “cocksucker,” about how bullying students flipped over his lunch tray, drenching his clothes and phone in milk, according to his lawyer’s appellate brief citing his testimony.

And in October 2017, a jury in Sullivan County, a mostly rural county upstate, returned a nearly $1 million verdict in his favor.

But now, because of juror error in answering a single question on an eight-question verdict sheet, and specifically because a well-intentioned judge overseeing the trial tried but failed to properly fix their error in the minutes after the trial ended, the verdict has been thrown out.

An Appellate Division, Third Department panel has ruled that a new trial must be held, writing that “the taking of this verdict was fatally flawed,” and stating that “Supreme Court [Judge Stephan Schick’s] subsequent efforts, while well intentioned, were futile and … our only course of action is to order a new trial.”

Motta, who developed PTSD and social anxiety from the years of bullying, according to his appellate lawyer, Stephen Bergstein, is expected to relive the experience over again from the stand.

Christopher Mills, the appellate attorney representing the Eldred Central School District in the lawsuit, could not be reached for comment despite multiple attempts.

The school district itself could not be immediately reached for comment Thursday.

According to both the Third Department’s decision and Bergstein’s appellate brief, the jury erred by answering verdict sheet question five after it had answered question four with “No.”

After finding the school district negligent and that the district’s negligence was a “substantial factor” in causing Motta’s injuries, the jurors also found that Motta had committed some negligence over the years.

Then, asked in question four whether Motta’s negligence was a “substantial factor” in causing his own injuries, the jury said, “No.”

The sheet’s instructions then said, “If your answer is No [to Question 4], proceed to Question 6.”
Instead, the jury went to question five and answered it. Question five had asked them to apportion a “percentage of fault” between the school district and Motta himself in causing the injuries he suffered.

The jury said the injuries were 70% caused by the district, 30% by Motta.

A short time later in the small courthouse upstate, a clerk read aloud the verdict sheet answers but, for some reason, bypassed reading aloud question five, the appeals panel’s decision and Bergstein said.
Part of what the clerk read aloud was an award of $300,000 to Motta for past pain and suffering and $640,000 to him for future pain and suffering, along with $60,000 to his parents for psychological and other injuries they suffered due to their son’s trauma.

Schick then excused the jury, before soon realizing the jury’s error, according to Bergstein and the panel.

Schick was able to quickly retrieve the jury forewoman, and she came back into the courtroom where, according to Bergstein, quoting a trial transcript, the forewoman told the judge and lawyers, “We just thought we had to come up with a number.”

The Third Department panel explained that Schick then “indicated that [he] considered the answer to question No. 5 a nullity and, after the foreperson was questioned and counsel given the opportunity to be heard, the foreperson was again discharged.”

But for the panel, which considered the district’s challenge to Schick’s “nullity” finding, what Schick did was not enough.

“The taking of this verdict was fatally flawed,” the panel wrote.

“Pursuant to CPLR 4111 (c), when the answers on a verdict sheet ‘are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial,’” wrote the panel, quoting Marine Midland Bank v. Russo Produce Co.

“The jury’s consideration of question No. 5 was inconsistent with its answer to question No. 4 and should have been brought to the jury’s attention with a curative charge, followed by a return to deliberations to resolve the inconsistency,” the panel said.

“However, because the jury had already been discharged, this was not possible and Supreme Court’s consultation with the jury foreperson alone, although done in open court, could not take the place of full jury reconsideration.”

“In essence,” the panel said, “the window of opportunity for Supreme Court to fix the problem closed when the other jurors left the courthouse. Supreme Court’s subsequent efforts, while well intentioned, were futile and, given this timeline, our only course of action is to order a new trial.”

Bergstein said Motta is now in his early 20s and he had begun seventh grade in 2009.

The lawyer also said of the appeals court decision, “It is tragic that there has to be another trial, and Anthony has to relive the bullying again, and be subject to cross-examination again, over a trial error that is not his fault and is not his [trial] lawyer’s fault.”

“I think when you have something like this, you really need to think of a solution that prevents a second trial, because it was a difficult trial for everyone—a full week [trial],” he said.

He also noted that he and the Mottas will try to challenge the Third Department’s May 9 decision, beginning with a motion for reconsideration.

A lesson for trial lawyers, he said, is that “you want to see the verdict sheet for yourself as a lawyer before jury leaves the courthouse.”

He added, “The [CPLR] statute appears to deny a court any discretion; if you’re dealing with this on appeal, you’re options are going to be limited.”