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."

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.”

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.  

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.

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.

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."

By Jason Grant | May 16, 2019 at 07:25 PM

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.”

Huge attorneys' fees award in nominal damages First Amendment case

You don't see a lot of pure free speech cases, involving people who are trying to assemble or speak out in public but prevented from doing so by the government. This case involves religious speech, where the police told the plaintiff to move from one side of the street to the other when he was expressing his religious views during gay pride celebrations. The jury awarded him a dollar against the police officer, but plaintiff appeals the trial court's ruling that the municipality is off the hook.

The case is Deferio v. City of Syracuse, a summary order issued on May 8. Plaintiff is a Christian evangelical who spreads his religious beliefs at gay pride events, holding up a sign with Bible verse. He also uses sound amplification. It appears plaintiff has used some offensive language during his protests. This case went to trial. Plaintiff wins against the officers, but he also wants to find the City liable also. He cannot do so. This case teaches us a lesson that civil rights lawyers already know: it is nearly impossible to hold a municipality liable for a civil rights violation, as you have to show a "custom or policy" resulted in the violation of your rights. We call that a Monell claim. While plaintiff says the City maintained a policy that gave private actors (like those who have a permit to speak) censorial control over the speech of other people (like the plaintiff-dissenter), there actually is nothing in writing that allows private speakers any authority over someone else's speech. The news is not that plaintiff cannot show a municipal policy under Section 1983; it would be news if he had been able to prove such a policy.

The more interesting angle on this case is found in the district court's ruling on attorneys' fees. Normally, when plaintiffs win only one dollar at trial, they get no fees, as per a Supreme Court ruling, Farrar v. Hobby (1992), which says the result is usually too trivial to justify fee-shifting. But there are exceptions to that rule. NDNY Judge Kahn does not devote much time to this issue, but he rejects the City's citation to Alvarez v. City of New York, 2017 WL 6033425 (SDNY Dec. 5, 2017), where the plaintiff got only one dollar after suing for big money and rejecting a $150,001 settlement offer on the eve of trial. But in Deferio's case, he "largely got what he asked for," and "an award of nominal damages 'recognizes the importance to organized society that constitutional rights be scrupulously observed.'" Plaintiff also got "practical" relief because the City's violation "will not be repeated again." I am not sure about this reasoning, and I have seen other First Amendment victors get peanuts after winning only a dollar. But every case is different. Plaintiff's lawyers in this case get $117,789.50 in fees from the City of Syracuse.

The fee award in the district court makes this a good case for plaintiff's lawyers who bring cases like this that do not involve large damages but involve constitutional principles, usually involving free speech. One dollar in damages may be worth more than $100,000 in legal fees.

Text spammers will pay $14.5 million over unwanted nonsense

These days, the spam phone calls come in on a regular basis even though they are illegal and annoying. Spam text messages are also a thing. These plaintiffs brought a class action against American Eagle Outfitters for sending unwanted text messages. The Court of Appeals says they have standing to bring this case, which means the class action survives.

The case is Melito v. American Eagle Outfitters, issued on April 30. This case demonstrates why we live in a civilized society. We resolve disputes through lawsuits, where learned judges review the facts and the law to achieve the proper result. Without this process, the phone spammers would be dealt with through mob justice, which is what they deserve. But mobs do not adhere to due process.

Under the Telephone Consumer Protection Act, it is illegal to make unwanted cell phone calls through an automatic dialing system. The FCC interprets the law to also prohibit unwanted text messages, which are annoying, but not as annoying as spam phone calls. The TCPA says you get $500.00 per violation. That may not sound like much, but class actions have a way turning small damages into huge damages. In this case, the class has more than 600,000 members, and the defendant agreed to pay $14,500,000 in damages, or between $142 and $285 for each class member after the legal fees are taken out. But one of the defendants objects to the class certification, claiming the plaintiffs do not even have standing to bring this case.

Standing is one of the few litigation principles enshrined in the Constitution. There must be an actual case or controversy before you can bring a lawsuit. Theoretical lawsuits are not allowed. Defendants Experian says plaintiffs lack standing because they did not suffer any "concrete" injury in fact. But the Court of Appeals (Hall, Lynch and Engelmayer [D.J.]) disagrees and finds for the plaintiffs, reasoning that they allege the very injury the TCPA was intended to prevent, which is "nuisance and privacy invasion." It occurs to me that the judges on this case themselves have received spam phone calls and texts, so they can relate. They probably got a car insurance or student loan phone call when they were writing the opinion. The rule here is that "unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients. A plaintiff alleging a violation under the TCPA need not allege any additional harm beyond the one Congress has identified."