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

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

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

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

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

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

Defense counsel cannot argue jury nullification in criminal case

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

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

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

Judge Parker dissents in part, writing:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Police need a good reason to cavity-search felony arrestees

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

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

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

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

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

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

Inmate has claim against prison for gang-related attack

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Courts not required to review FLSA settlements under Rule 68

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

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

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

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

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

It is here where Judge Walker gets creative:

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

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

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

Monell, Monell, Monell

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court of Appeals says Congress can subpoena Trump financial records

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

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

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

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

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

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

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

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