Wednesday, April 8, 2020

Qualified immunity knocks out warrantless search and too-cold air conditioning case

It is a cardinal rule of federal appellate practice that you cannot take up an appeal until the entire case is over, and every last issue is resolved. One exception to that rule is when public defendants are seeking qualified immunity, which is the legal principle that you can't sue police officers and other public employees if they did not violate clearly-established law. This exception allows us to honor the rule that qualified immunity should be resolved as early in the case as possible, even if that means you can appeal the denial of such immunity before the parties even start discovery.

The case is Shakir v. Stankye, a summary order issued on March 24. This case alleges that the police officer unlawfully executed an arrest warrant, as follows: the police came to plaintiff's home and repeatedly knocked on the door while plaintiff remained in the house for 10 to 15 minutes. After they finally arrested plaintiff, they asked about the whereabouts of his son, A.S., who was living with plaintiff's mother. Plaintiff would not tell the police where his son was, so the police entered plaintiff's home and found A.S. and escorted him out. The police were looking for A.S. because there was an allegation that plaintiff had sexually abused him.

Can plaintiff proceed with this suit? The police say they had to enter the house without a warrant under the "exigent circumstances" exception to the warrant rule, which holds that the police can proceed without a warrant if necessary to protect someone from imminent harm and there is no time to get a warrant. But plaintiff cannot proceed with the case because there is no case on point that holds that the police violated the Fourth Amendment in entering the house without a warrant. Instead, "the circumstances here were such that Stankye could reasonably believe that A.S. was inside Shakir's home and in need of assistance, a sufficient basis to conduct a warrantless search." Plaintiff's refusal to tell the police where A.S. was supported the police officer's reasonable belief that A.S. was inside the home. It was also reasonable for the police to believe that A.S. was in need of assistance, since he had just arrested plaintiff for child sexual abuse. Since the officer gets qualified immunity, the Court of Appeals (Jacobs, Hall and Livingston) does not determine whether plaintiff's underlying rights were violated; since the law was not clearly-established that plaintiff's rights were in fact violated that day, there is no point in determining whether, absent the qualified immunity inquiry, the officer violated plaintiff's rights.

Plaintiff also sues the officer for violating his right to constitutional conditions of confinement at the police headquarters. This claim also fails under the qualified immunity test, since plaintiff cannot show the officer violated clearly-established law in (1) requiring him to strip to his underwear to show he was not armed; (2) taunting plaintiff about his high bail; (3) turning the air conditioning in his cell to the maximum, causing plaintiff to get sick. The main issue for plaintiff is the air conditioning, but no court has yet held that brief exposure to cold violates the Constitution. While cases hold that prolonged exposure to bitter cold may violate a prisoner's constitutional rights, that is not close enough to plaintiff's case to show that the officer was on notice that he was violating the Constitution. So that claim is dismissed, as well.


Tuesday, April 7, 2020

Overtime pay available to plaintiffs under the New York Labor Law

The Court of Appeals holds that employees who were not entitled to certain overtime pay under the Fair Labor Standards Act can still get that overtime under the New York Labor Law.

The case is Hayward v. IBI Armored Services, Inc., issued on April 3, only a week after the case was argued. Plaintiffs transported money to and from grocery stores and banks in New York City. Since May 2014, they have not been paid overtime (1.5 times their hourly rate). Hence, this lawsuit.

The FLSA has a Motor Carrier Exemption, which means certain motor carriers do not get that overtime pay. The district court said this exemption not only guides the FLSA but also the New York Labor Law. The Court of Appeals says plaintiffs are in fact entitled to that overtime pay under state law. Under state law, "employees subject to FLSA exemptions like the Motor Carrier Exemption are nonetheless entitled to overtime compensation at a rate of one-half times the minimum wage."

The Second Circuit reaches this conclusion through careful analysis of the New York Labor Law, which surgically adopts certain FLSA provisions but not others. Specifically, while plaintiffs cannot get 1.5 times their regular wage under the FLSA and the New York Labor Law, they are entitled to 1.5 times the minimum wage under the New York Labor Law.

Monday, April 6, 2020

Chipotle managers may be able to bring collective action under FLSA

The Court of Appeals in this case says the plaintiffs may bring a collective action against their employer for violations under the Fair Labor Standards Act, but they cannot bring a class action. The Court uses this case to clarify the rules for certain collective actions.

The case is Scott v. Chipotle Mexican Grill, LLC, issued on April 1, one of the rare cases decided more than one year after oral argument. Defendant is a Mexican restaurant chain with more than 2,000 restaurants. Plaintiffs claim the restaurant misclassified them as managerial employees, which means they cannot recover overtime pay. Since we got a lot of potential class members (known within the restaurant as "apprentices") an incorrect classification means this would be a profitable case for them and their attorneys.

To maintain a class action, the potential class members must show their claims are sufficiently numerous, have legal issues in common, their claims are typical, and the class members will adequately represent the class as a whole. The district court decertified the class, reasoning that the common factual and legal questions raised by the case were outweighed by individualized questions surrounding each plaintiff's primary duties. Plaintiffs claimed their primary duties were managerial in nature. The predominance requirement for class actions is met "if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." This is the predominance inquiry.

The problem for the class plaintiffs, the Second Circuit (Chin, Sullivan and Parker) holds, is that, while the range of managerial tasks (such as employment decisions, scheduling, inventory, and performance evaluations) and the range of manual labor tasks (such as working the line, serving customers, etc.) are similar, the primary duty performed by the class plaintiffs are not sufficiently similar. For example, while some apprentices prepared and disbursed scheduled without approval from higher management, others did not perform this managerial task because they did not believe they had authority to do so. In other words, despite some common questions of fact surrounding their job duties, "the disparate accounts from Apprentices proved fatal to the predominance inquiry."

But the plaintiffs do convince the Second Circuit that the district court got it wrong in denying their right to bring a collective action, which is a concept unique to the Fair Labor Standards Act, allowing "similarly situated" employees to band together for a suit. This is different from a class action. The Second Circuit uses this case to clarify what it means to be similarly situated under the FLSA, noting that the Ninth Circuit said in 2018 that to be similarly situated, the "named plaintiffs and opt-in plaintiffs are alike with regard to some material aspect of their litigation," such as a similar issue of fact or law relevant to disposition of their FLSA claims. "It follows that if named plaintiffs and party plaintiffs share legal or factual similarities material to the disposition of their claims, dissimilarities in other respects should not defeat collective treatment." This is new law in the Second Circuit.

But there is more to the collective action analysis. Under "step two" of this so-called "ad hoc" framework, courts have considered the disparate factual and employment settings of the individual plaintiffs, defenses to the case that might be individual to each plaintiff, and fairness and procedural considerations counseling for or against collective action treatment. Some courts even use the "sliding scale" approach, which conflates certain class action principles with the certification rules. The Second Circuit rejects these approaches and holds that the requirements for certifying a class action under FRCP 23 are unrelated to and more stringent to the requirements for similarly situated employees who bring a collective action under the FLSA. Since the district court rejected the collective action under the "ad hoc" approach, that was improper. The case returns to the district court to resolve that issue under the analysis in this appellate ruling.

Friday, April 3, 2020

Pro se inmate wins deliberate indifference dental treatment appeal

Inmates who bring medical indifference claims against their jailers mostly lose their cases because the legal standards adopted by the courts impose evidentiary hurdles that usually doom their chances of victory. But the courts sometimes find that the inmates have enough evidence for a jury trial. This is one of those (rare) case, all the more remarkable because the inmate won his appeal pro se against the Connecticut Attorney General's office.

The case is Gaffney v. Perelmuter, a summary order issued on April 1. To win these claims under the Eighth Amendment, the inmate has to show that (1) his medical condition was sufficiently serious and (2) the medical defendant acted with deliberate indifference to his medical needs, that is, that the defendant acted or failed to act while actually aware of a substantial risk that serious inmate harm will result.

As an aside, did you notice how detailed that multi-part constitutional standard is? The Eighth Amendment does not articulate this test. Rather, this test is judge-made. Do people realize that most constitutional issues are resolved on the basis of multi-part legal standards that were crafted by appellate judges over the years? I am not saying this is right or wrong, but the point is worth pondering.

We have two issues here: first, whether the dentist's choice to extract the plaintiff's tooth even though putting in crowns may have been the better treatment. But plaintiff loses that claim on summary judgment because he neither alleges the treatment option was foreclosed by prison policy or that based on monetary or other improper incentives. At best, he only argues the extraction choice was incorrect and that other dentists said extraction was unnecessary. That might be enough for a dental malpractice case under state tort law, but it will not work in an Eighth Amendment case brought under Section 1983.

However, plaintiff can win his claim alleging the dentist was deliberately indifferent to his pain during the extraction itself. Plaintiff alleges the dentist began working on his tooth before the Novocain kicked in, and that he ignored plaintiff's cries of pain and instead "digged" and "stabbed" in his mouth.  Folks, this is why people don't like going to the dentist. Here is how the Court of Appeals (Jacobs, Sack and Hall) analyzes the case

Construed liberally, Gaffney argued that Perelmuter was deliberately indifferent during the extraction in two distinct ways: (1) Perelmuter knew or should have known that ten minutes was insufficient time for the Novocain to take effect and for Perelmuter to properly extract the tooth, and (2) Perelmuter evinced conscious disregard of Gaffney’s pain during the extraction by ignoring his cries of pain, failing to provide further pain relief, and continuing to “dig” and “stab” the area. Viewing the evidence in the light most favorable to Gaffney, both arguments succeed.
The following evidence further supports plaintiff's claim (and reinforces why people hate going to the dentist):

First, "That ten minutes was an insufficient time is further supported by the evidence of complications during the extraction: the tooth broke in the gum and Gaffney required several follow-up visits (including two procedures to slice the gum away from the cheek); and

Second, "Gaffney asserted that he yelled out, moaned and groaned, and held his knees to his chest, and a reasonable jury could infer that Perelmuter knew from that reaction that Gaffney was in pain. A reasonable jury could also conclude that the confluence of factors here (proceeding with insufficient time, ignoring yells of pain, breaking the tooth, repeatedly slipping and stabbing the area), even if considered individually would not show deliberate indifference, taken together show that Perelmuter evinced a conscious disregard to Gaffney’s pain and dental health during the extraction."

Wednesday, April 1, 2020

Sexual hazing in the workplace is not enough for sexual harassment case

You learn something new every day. Today, you will learn that, in some workplaces, workers will tea-bag each other. This a form of sexual harassment. Unfortunately for the plaintiff who brought this case, the tea-bagging does not give him a lawsuit.

The case is Hoit v. Capital District Transportation Authority, a summary order issued on March 30. On his last day of work, coworkers assaulted and tea-bagged him. In a footnote, the Court of Appeals tells us about tea-bagging: "This Court has defined tea-bagging as 'a hazing act—indeed a form of sexual assault—during which the victim is pinned down on the floor by several [people] while another [person] rubs his genitalia in the victim’s face.'” Plaintiff claims his coworkers:

pinned him to the floor “dry humped” him by “rubbing his hips and groin on [Hoit’s] back, while making humping noises and telling [Hoit] to ‘Let it happen. Let it happen.’” Hoit yelled at Clanton to get off of him and physically struggled to get away. Then Baez, a foreman for the mechanics, came running over, pulled his pants down and kneeled over Hoit’s head in his boxer briefs, placing his clothed testicles on Hoit’s head. Clanton continued to hold Hoit down during the Incident. Meanwhile, Mancini, a foreman for the service technicians, recorded a video of the Incident on his phone. After the Incident, Hoit worked the remainder of his shift, taking a cigarette break with Clanton and a meal break with Baez and Mancini.


The case was dismissed for failure to state a claim under Rule 12, and the Court of Appeals (Winter, Hall and Cote [D.J.]) affirms. The case is over.

Plaintiff loses because he sued under the New York State Human Rights Law, which only allows you to sue the employer if it condones, encourages or approves the offending conduct. It is not enough for plaintiff to argue that management should have known about the rumors of the sexually explicit work environment. These rumors mostly involved coworkers exposing themselves at work and other "sexual harassment stuff." The employer did not receive any complaints about this, except for something that happened in 2009, which the CDTA handled appropriately.

Plaintiff also sues Clanton individually under Section 1983, which provides relief for constitutional violations under the Equal Protection Clause. Plaintiff cannot win that claim, though, because Clanton did not sexually harass plaintiff "under color of state law," meaning, he was not "misusing some power that he possessed by virtue of state law." Supreme Court and Second Circuit authority holds that Section 1983 does not cover the "personal pursuits" of government officials, such as "hazing or horseplay."

Tuesday, March 31, 2020

Ever hear of the "trivial defects doctrine"?

As Judge Calabresi writes in his opening paragraph, this is a routine trip and fall case. A routine tort case that was filed in federal court, that is, because the plaintiff is suing the Transportation Security Administration, also known as the TSA. The Court of Appeals finds that plaintiff's case is not substantial enough for a lawsuit.

The case is Coyle v. United States of America, issued on March 30. When plaintiff was arriving at Idlewild Airport in New York City after a trip from Fort Lauderdale, she tripped on the rubber matting near the TSA screening machines, breaking her nose. She argues that the mat created a danger for travelers. She sues under the Federal Tort Claims Act, for which the United States can be held liable. The question here is whether the U.S. breached its duty of care to Coyle. If it did, then summary judgment is not proper and Coyle can win at trial.

There will be no trial because summary judgment was properly granted, the Court of Appeals (Calabresi, Lohier and Park) rules. She loses under the "trivial defect doctrine," a relatively obscure rule that exempts the defendant from tort liability for "negligent maintenance by reason of trivial defects on a walkway . . . as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection." Never heard of this doctrine? Neither did I.

Based on Coyle’s testimony as well as the photographs of the mat and its surroundings in the TSA screening area that Coyle presented, we conclude that TSA’s use and placement of the mat over which Coyle tripped constituted a trivial condition, and hence can be held to be non-negligent as a matter of law. . . . This was not a situation where Coyle was “naturally distracted from looking down at [her] feet” and for that reason did not notice that a mat was on the floor. And Coyle has made no claim that the terminal was dimly lit, or crowded, or even that she was in a rush to make her flight. Indeed, even with the delay caused by her fall, there was still nearly an hour between Coyle leaving the TSA screening area and her flight’s departure. In the absence of any such variables, the presence of a floor mat placed on the floor, even a one-inch thick black mat on a black floor, is—under the triviality doctrine—simply not a sufficiently dangerous condition to constitute negligence

Thursday, March 26, 2020

High school basketball protest gives rise to free speech claim

This is an unusual case, but not so unusual that the defendants are entitled to qualified immunity as a matter of law. It involves public school parents who did not like how the girl's high school basketball coach was managing the team. It turned into a First Amendment case.

The case is Frierson v. Reinisch, a summary order issued on March 26. Plaintiff was one of the student-athlete's parents. He met with the student-athletes who were contemplating some kind of bold action to protest the coach. Some suggested the girls basketball team walk off the court during a game. No such walk-out took place, but Reinisch,  the athletic director for the Troy City School District, had heard about all of this and investigated the "rumor" of a student protest. A videotape from the school showed plaintiff meeting with some of the players. There was no audio. Reinisch next told plaintiff that he was banned from attending future school district sporting events.

The district court said plaintiff has properly asserted a First Amendment case, and that the law was clearly established that, if plaintiff's allegations are believed by a jury, defendants cannot invoke qualified immunity, which attaches when the case law on the precise issue raised by the case is unclear and the defendant public officials are therefore not on notice that they are violating the Constitution. The Second Circuit (Carney, Wesley, and Menashi) affirms, and the case now proceeds to trial.

The law was clear for a case like this because the Second Circuit held in Johnson v. Perry, 859 F.3d 156 (2d Cir. 2017), had already addressed a case like this. "In the specific context of retaliation by a school official restricting access to athletic events, we have said that where, as here, a public school invites parents and other spectators to attend sporting events held in its gymnasium, the gymnasium operates as 'a limited public forum' and the school may restrict access to a limited public forum only when (1) 'its restrictions are reasonable and viewpoint-neutral,' or (2) 'there is a clear and present danger of disruptions such as disorder, riot, obstruction of the event, or immediate threat to public safety.'”

The facts in Perry are similar to this case. In Perry, the father "was banned after complaining to school administrators that his daughter, a member of the varsity basketball team, wanted to quit the team because the coach was treating her unfairly. When the father learned that school officials were pressuring his daughter to remain on the team, he met with the principal, and the two exchanged heated words. The following day, the principal informed the father that he was banned from attending all future school sporting events, purportedly because the father’s 'verbal altercations, physical intimidation and direct threats to staff ha[d] created an unsafe environment for staff, students and other parents.'” Since the jury could find that the father in Perry posed no threat to anyone and the principal's motive in banning him from future sporting events was retaliatory, the father had a case. That's the situation before the Second Circuit in Frierson.

Wednesday, March 25, 2020

Court of Appeals will not revisit Trump Twitter First Amendment case

The Second Circuit has declined to revisit its case from last year holding that the president's Twitter account is a public forum and therefore cannot be censored by the president under the First Amendment. The president was blocking his critics who responded to his Twitter tweets. Judge Parker writes a separate opinion in support of the decision not to disturb last year's ruling, but two judges (both of them Trump appointees) write that the Court should take another look at the case and find that the president's Twitter account is not an arm of the government.

The case is Knight First Amendment Institute v. Trump, issued on March 23. The Second Circuit initially decided this case in ... The U.S. government ask the full Court of Appeals to rehear the case en banc, but the Circuit declines to do so. This is not an en banc court. The Second Circuit takes the view that en banc rulings harm collegiality and are presumed correctly decided. That does not stop aggrieved parties from trying.

Here is how Judge Parker opens his ruling.


This case arises from the President’s use of the @realDonaldTrump Twitter account (the “Account”) as a primary vehicle for his official communications. He uses this account to make official statements on a wide variety of subjects, many of great national importance. The public, in turn, is able to respond to and engage with the President and other users on Twitter. In Knight First Amendment Inst. at Columbia Univ. v. Trump, we concluded that this dialogue creates a public forum. 928 F.3d 226 (2d Cir. 2019). We also concluded that when the President creates such a public forum, he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.
Judge Parker addresses the dissenter's view that the Twitter account is Trump's private account and not subject to First Amendment standards. He reprints some of Trump's tweets announcing policy on Iran and other foreign matters, demonstrating that the president uses Twitter to communicate federal policy. While the dissenters claim the President does not exercise “some right or privilege created by the State” when he blocks accounts on Twitter, in part because Trump began using the account before he became president, Judge Parker notes that 


When the President tweeted about Iran he was speaking in his capacity as the nation’s chief executive and CommanderinChief. If that is not a “right or privilege created by the State” it is difficult to imagine what might be. By the same token, when he receives responses from the public to the Account, and when he blocks responders whose views he disfavors, he remains the President. The critical question in this case is not the nature of the Account when it was set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President.

Monday, March 23, 2020

Supreme Court makes it harder to win Section 1981 contract discrimination cases

The Supreme Court has ruled that the federal statute prohibiting racial discrimination in the making of contracts requires the plaintiff to prove that racial discrimination was the "but-for" cause of the contract breach. This ruling rejects the "motivating factor" test in the Second Circuit. This case continues the trend that began more than 10 years ago when the Court began interpreting various employment discrimination statutes to require "but-for" causation. That includes the Age Discrimination in Employment Act and Title VII's anti-retaliation provisions. 

The case is Comcast Corp. v. National Assn. of African American-owned Media, issued on March 23. That's right, in the midst of a global pandemic, the Supreme Court is forging ahead. Section 1981 was enacted in 1866, post-Civil War. It makes it unlawful to discriminate in the making and enforcement of contracts. This statute applies to employment cases, including at-will employment relationships, as the Second Circuit held in Lauture v. International Business Machines, 216 F.3d 258 (2d Cir. 2000), a case that I briefed.

Section 1981 does not provide for a causation standard. That means the Supreme Court will apply the common-law causation test, which is the but-for standard. Writing for a unanimous Court, Justice Gorsuch states that "it is textbook tort law that a plaintiff seeking redress for a defendant's legal wrong typically must prove but-for causation." The Court explains how this works:

Under this standard, a plaintiff must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred. This ancient and simple “but for” common law causation test, we have held, supplies the “default” or “background” rule against which Congress is normally presumed to have legislated when creating its own new causes of action.
While the statute does not expressly allow for private lawsuits to enforce its provisions, the Supreme Court in 1976 said the statute implies such a claim. The Court notes that it interpreted the statute this way when it was routinely implying causes of action in federal statutes (something the Court is no longer included to do). It was a different Court in the 1970s, more hospitable to civil rights. But the current Court is not going to upend those decisions. Instead, it says that even when it was holding that statutes implied that private lawsuits can enforce the statute, the Court "usually insisted on legal elements at least as demanding as those Congress specified for analogous causes of action actually found in the statutory text." Looking to the statutes that Congress enacted at the time it passed Section 1981, the Court says that the criminal enforcement provisions for this kind of racial discrimination (and related statutes prohibiting racial discrimination in the sale of real estate) required the "but-for"causation test. The Court rejects the "motivating factor" test even though Title VII of the Civil Rights Act of 1964 (which also prohibits racial discrimination in employment) applies that test in disparate treatment cases. In the end, the Court says, these are separate statutes with different wording. If we want Section 1981 to impose a more lenient burden of proof on plaintiffs, Congress is going to have to amend the statute.

What this means for plaintiffs is that it is now a little harder to win Section 1981 lawsuits. The motivating factor test under Title VII's disparate treatment provision does not require the plaintiff to show that racial (or gender, religious or national origin discrimination) is the determining or 51% percent reason for the discrimination. But that heightened burden applies under Section 1981. As recently as November 2019, the Second Circuit applied the motivating factor test to Section 1981 cases. See Khanna v. MUFG Union Bank, 785 Fed. Appx. 15 (2d Cir. 2019). So, under this ruling, should the jury decide to thread the needle that way, a racial discrimination plaintiff can win her claim under Title VII but lose under Section 1981.
pplicable to claim

Khanna v. MUFG Union Bank, N.A., 785 F. App'x 15 (2d Cir. 2019)
pplicable to claim

Khanna v. MUFG Union Bank, N.A., 785 F. App'x 15 (2d Cir. 2019)

Tuesday, March 17, 2020

$15 million verdict on child sexual abuse case is upheld

The Court of Appeals holds that a $21 million judgment against the defendant in a child sexual abuse case was not excessive.

The case is Mirlis v. Greer, issued on March 3. I wrote about other aspects of the case at this link and that link. Now we talk about damages. What you should know about damages is that juries are not given much guidance on what to award victorious plaintiffs. So the jury gives an amount it deems fair, and the trial and appellate courts then figure out over the next year or two whether the amount was too much. The courts rely on similar cases to determine whether the damages fell within the reasonable range.

In federal court, appellate judges determine whether jury verdicts are too high by asking whether the amount "shocks the conscience." That standard of review is deferential to the juries. Under a Supreme Court ruling from the 1990s, Gasperini v. Center for the Humanities, state-law verdicts in federal court in New York are afforded less deferential review under the CPLR. This case applies Connecticut law, so "shocks the conscience" does not apply, though the standard incorporates it somewhat; the standard is whether the award "falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption."

This judgment is not too high. In one case from 2019, a Connecticut court upheld a $15 million verdict where the defendant sexually abused the plaintiff from the time she was six years old until she turned 17. Another case, against the Boy Scouts, upheld a $7 million award where the victim was sexually abused three times. In Mirlis's case, the evidence shows that plaintiff was sexually abused in a variety of ways for several years, and that his pain and suffering is extensive and will have lifelong consequences. The $15 million pain and suffering award was "undoubtedly high," but not excessive in comparison to other awards, particularly on a "per incident basis." (The rest of the award was for punitive damages and interest).

Monday, March 16, 2020

What happens when a witness invokes the Fifth Amendment during a civil case?

The Court of Appeals has sustained a $21 million judgment against a school administrator whom a jury determined had repeatedly sexually abused one of his students. The Court addresses how trial courts should handle witnesses who invoke the Fifth Amendment during civil trials.

The case is Mirlis v. Greer, issued on March 3. I had an administrative hearing before the State Division of Human Rights a few years ago where the employer invoked the Fifth Amendment during the entirety of his cross-examination. It was quite a scene. One question after another, we got the Fifth Amendment. Our client alleged she was fired because of her transgender status. We won the hearing. There is some case law on the meaning of the Fifth Amendment during civil cases. This case provides additional guidance.

During trial, Greer invoked the Fifth Amendment on a series of questions relating to whether he sexually abused plaintiff and other boys. (The Fifth Amendment protects you from the right of self-incrimination, requiring prosecutors to prove their criminal cases through other evidence, unless the criminal defendant waives the privilege. In civil cases, the concern is that the witness will incriminate himself, which may prompt the unpleasant spectacle where the witness will not answer questions that may incriminate him). The trial court instructed the jury that Greer has the right to take the Fifth and that the jury may, but is not required to, infer that the answers would have been adverse to Greer's interests. This instruction was proper, the Court of Appeals (Chin, Carney and Sannes [D.J.]) holds, in light of Brinks v. City of New York, 717 F.2d 700 (2d Cir 1983), which held that the district court may tell the jury that a "witness has a constitutional right to define to answer on the ground that it may tend to incriminate him and you may, but need not, infer by such refusal that the answers would have been adverse to the witness' interest."

We also have the interesting question of how the trial court handles the invocation of this privilege before the jury. Here, plaintiff's lawyer asked Greer a series of questions about sexual abuse. Each question was followed by the Fifth Amendment privilege. The concern is that plaintiff's counsel, aware that the witness will invoke the privilege for all questions, will ask fact-specific questions designed to suggest to the jury that the answers to those questions would have been "yes" but for the privilege. That concern was first raised by Judge Winter's dissent in Brinks. In this case, while invocation of the Fifth Amendment was "damning," it was not unfairly prejudicial (and therefore no reversible error on the trial court's part) because (1) Greer's refusal to answer these questions was "telling" as "silence is often evidence of the most persuasive character," (2) Mirlis did provide evidence of the sexual abuse, so the adverse inference was corroborated; (3) the district court gave a proper limiting instruction, as discussed above; and (4) Greer asserted the privileged inconsistently, actually answering some questions (in the negative) about whether he had sexually abused plaintiff, and he also invoked the Fifth on some questions that had no connection to any criminal conduct. As the trial courts have much leeway in regulating their trials, it did not abuse its discretion in supervising how Greer invoked the Fifth Amendment.

Friday, March 13, 2020

When can a blogger recover a non-party's video testimony?

The Second Circuit has used a child abuse case to clarify the rules guiding when the district courts may release private information about non-party witnesses. The Court of Appeals rules in favor of the non-party witness, who fought to prevent the release of a video deposition in which he described how a former teacher had sexually abused him.

The case is Mirlis v. Greer, issued on March 3. The plaintiff sued his former teacher, Greer, for sexual abuse. The non-party witness, Hack, gave deposition testimony about the sexual abuse to which Greer had subjected him several decades earlier. Hack, now a teacher himself, did not want to testify at trial. He ran away from process servers when he was teaching a class, abandoning his students. Since he did not testify at trial, the jury saw portions of the video deposition. After the jury awarded the plaintiff $21 million in damages, a Connecticut blogger who'd been covering the case asked the district court to release the video deposition in its entirety. The district court granted that motion, but the Court of Appeals (Chin, Carney and Sannes [D.J.]) reverses.

In order to obtain records like this, they must be "judicial documents." The video deposition is such a document, defined as "any item entered into evidence at a public session of trial" except for matters entered under seal. Courts also presume that the public should have access to such documents, as "such access is critical" in "enabl[ing] the public to monitor the actions of the courts and juries." The hard question is how courts should balance the interest between public access and any countervailing interest, such as the privacy of third parties. The last major ruling on this final issue came in 1987, in the pre-Internet CBS case, 828 F.2d 958 (2d Cir 1987). While the district court agreed to release the video deposition on authority of the CBS case, the Court of Appeals says that was wrong.

The CBS case is different from this case. In CBS, the information was public and had already been publicized. In the Mirlis case, the video is personal in nature and, importantly for the Court of Appeals, the ubiquity of the Internet can result in this video remaining available forever. That changes the equation. The Court of Appeals believes the Connecticut blogger who wants this video has "unsavory motives" in seeking the video, and that his blog "demonstrate[s] considerable personality hostility" toward Greer and Hack, the witness, such that he may use the video to "humiliate and harass" Hack. The Court of Appeals clarifies that the motives of the individual seeking the judicial records is relevant to whether the trial court should release the information. As the Court finds the blogger has impure motives, that weighs heavily against releasing the video deposition. Hack's privacy interests were also improperly discounted by the district court.

Thursday, March 12, 2020

Plaintiff may sue NYC in alleging that officers are directed to submit false reports against arrestees

The plaintiff in this case was arrested during a Black Lives Matter protest in New York City. The charges against him for disorderly conduct were dropped, and he sued the arresting officer and the City under the Fourth Amendment. The district court dismissed the claims, but the Court of Appeals revives them on the basis that the district court did not properly review the complaint in assessing the claim. This Iqbal plausibility case is good for plaintiffs, and unless something better comes along, this is the case of the year for false arrest plaintiffs.

The case is Lynch v. City of New York, issued on March 4. The case was dismissed under Rule 12, which means the trial court did not think plaintiff alleged a plausible claim under the Supreme Court's seminal Iqbal ruling from 2009, which requires plaintiffs to assert enough factual allegations to give rise to a plausible and non-conclusory claim for relief. Iqbal made it easier for courts to dismiss claims, but the Court of Appeals here says this case is Iqbal-proof.

First, the Court of Appeals (Kearse, Pooler and Winter) reminds us that Iqbal does not impose a probability requirement but a plausibility requirement, which is more favorable to plaintiffs than probability. Also, trial courts cannot choose between two plausible inferences raised by the allegations in the complaint. Instead, the court must "construe all reasonable inferences that can be drawn from the complaint in the light most favorable to the plaintiff." The language in this decision on Iqbal plausibility is useful for plaintiffs trying to repel motions to dismiss.

Under this standard of review, the district court improperly assumed that plaintiff did not have a false arrest claim. The district court said the police had probable cause to arrest plaintiff for obstructing traffic during the protest even though the complaint does not concede that plaintiff was among the crowd that was actually in the road when the police instructed the protesters to disperse. While some marchers were in the road, plaintiff was not among them. Careful review of the complaint shows that plaintiff was one of the marchers who were not given that instruction. This holding reminds us that complaints must be reviewed carefully to determine if the plaintiff has pled himself out of federal court. A detailed complaint may contain sufficient allegations to make out a claim, and the fact that plaintiff was among lawbreakers does not mean he was a lawbreaker and that he ignored a lawful order to get off the street and onto the sidewalk.

The more interesting holding involves plaintiff's claim against the City. You cannot win a Section 1983 case against a municipality unless you can show your unlawful arrest resulted from an unlawful municipal policy and practice. That is difficult to do in false arrest cases, even against small municipalities. Plaintiff said he was arrested pursuant to an unofficial "False Observation" practice in which New York City officers are allegedly instructed to write out fake facts to justify arresting a plaintiff. Plaintiff's allegations in this regard are not conclusory. He details how, in other lawsuits, the False Observation Practice has resulted in the unlawful arrests of mass protesters. This evidence come in the form of deposition testimony from a police officer in another case, and the fact that federal judges said in that case that an officer had complied with the False Observation directive in the contest of 2004 Republican National Convention protests, and that this was not an isolated event. Plaintiff in this case also alleges this practice is ongoing. These allegations are enough to permit plaintiff to develop this theory in discovery. While the district court said these allegations are faulty because other lawsuits cannot be used to prove your case, the appellate court says that doctrine does not apply in Rule 12 motion practice. The Second Circuit concludes:

Accepting as true the Complaint's allegations that the City at least in 2004 and seven or eight years thereafter in fact engaged in the False Observation Practice and that at least two NYPS officers have so testified, the Complaint allows the inference that . . . the City knowingly did not end that practice.

Wednesday, March 11, 2020

Stolen biscuits give rise to expansive constructive discharge ruling

I would say that constructive discharge claims are among the most difficult claims to win under Title VII. The courts have settled upon this legal standard for plaintiffs to show that their resignations are the legal equivalent of terminations for purposes of making out a prima facie case: "A plaintiff may prove a constructive discharge by establishing that his employer, rather than acting directly, deliberately ma[de his] working conditions so intolerable that [he was] forced into an involuntary resignation." That is very high burden, and few plaintiffs in the Second Circuit meet that standard. This plaintiff does.

The case is Green v. Town of New Haven, issued on March 10. Plaintiff worked in the records division of the police department. One day, she noted that someone's biscuit dough had been sitting in the office refrigerator for a few weeks. The dough did not belong to plaintiff, but she placed it in her bag and took it back to her desk. A lieutenant who had nothing better to do with his time immediately noticed that the biscuit dough was missing and sealed the refrigerator with yellow "crime scene" tape. He also sent employees an email complaining that the biscuits "grew legs and walked away." Plaintiff was given the third-degree over this, and she was written up on disciplinary charges. It may seem like I am making this up, but I can assure you that I am not. When confronted about this high crime and misdemeanor, plaintiff said she was going to bake the biscuits at home and bring them into the office for everyone. Internal affairs even prepared a report on the incident. You would think that plaintiff would prevail at her civil service hearing (or at least escape termination), but on the day of the hearing, plaintiff's union representative advised plaintiff that, based on his conversation with Town representatives, and pursuant to a "disciplinary matrix" that was in place since the department was functioning under a consent decree, plaintiff would going to be terminated. She resigned instead.

Since plaintiff had also proffered evidence of age discrimination, she claims the termination was involuntary. The district court disagreed and said this was not a constructive discharge. The Court of Appeals (Kearse, Chin and Wesley) says a jury may find otherwise. While most plaintiffs fail to convince the Court of Appeals that their resignations were constructive terminations, the Second Circuit notes that, over 30 years ago, it stated that a plaintiff could make out such a claim where his supervisor "told him he would be fired at the end of the 90‐day probationary period no matter what he did to improve his allegedly deficient performance." That case was Lopez v. S.B. Thomas, 831 F.2d 1184 (2d Cir. 1987). The Court notes that "our Lopez opinion indicated that a constructive discharge could properly be found where an employer merely, albeit 'clearly[,] expressed his desire that [an] employee resign because such a statement' could cause a reasonable person to feel compelled to resign." In another case, the plaintiff could not prevail because he was unable to show that 'the employer 'never mentioned retirement to Stetson and never either expressly or impliedly suggested that Stetsonʹs employment would be terminated.ʺ That case was Stetson v. NYNEX Service Co., 995 F.2d 355 (2d Cir. 1993).

Plaintiff can prove constructive discharge because a knowledegable source -- a union representative -- told her she was going to lose the hearing. The Department's Internal Affairs Officer also told plaintiff that the department no longer trusted her and did not want her working there anymore, and that stealing from the department was a terminable offense. The Court of Appeals says, "If any relevant facts are in dispute or subject to competing inferences as to their effects, or if there is admissible evidence from which a rational juror could infer that a reasonable employee would have felt so compelled, rejection of the constructive‐discharge theory as a matter of law is impermissible."

While the district court said in rejecting the case that no one with decisionmaking authority told plaintiff she was going to be terminated, the Court of Appeals states, "While the identity of the person delivering a termination threat or prediction and the level of certainty expressed in such a threat or prediction are considerations for a factfinder to weigh, neither an absolute statement nor a direct communication by an ultimate decisionmaker is a sine qua non for evidence of a constructive discharge."  The Court wraps up its analysis this way:

This outright dismissal as to any value or effect of advice from the union representative seems to indicate the courtʹs belief that, despite having received an I.A. officerʹs informed view that she has committed a fire‐able offense, a reasonable employee, as a matter of law, cannot feel compelled to resign rather than insist on a hearing when her union representative‐‐who is presumably looking after her interests‐‐makes an ʺeducatedʺ prediction that she is almost certain to lose in the hearing. We know of no authority supporting such a principle of law. And to the extent that the court found the union representativeʹs advice ʺunavailingʺ simply as a matter of fact‐‐i.e., as outweighed by other evidence as to what a reasonable employee in Greenʹs shoes ʺwouldʺ have felt compelled to do ‐- the court so found by impermissibly conducting its own weighing of the evidence and by drawing all inferences adversely to Green.



Tuesday, March 10, 2020

Plaintiff can win retaliation claim in Title VII harassment suit

The Court of Appeals has ruled that a plaintiff makes out a legitimate retaliation claim after he was fired five months after complaining about religious and national origin harassment.

The case is Rasmy v. Marriott International, issued on March 6. I wrote about the hostile work environment portion of the case at this link. I represent the plaintiff and argued this appeal.

Plaintiff was fired after he got into an altercation with a coworker who had subjected him to a hostile work environment. The district court dismissed this claim because the termination took place five months after plaintiff had last complained about the work environment, and because the coworker was also fired as a result of the altercation. The Court of Appeals (Cabranes, Bianco and Reiss [D.J.]) rules that the district court resolved disputed facts in dismissing the case.

The district court first got it wrong in holding plaintiff to the "but-for" causation standard at the prima facie portion of the case. That causation test was adopted by the Supreme Court in recent years for retaliation cases, and it increases the plaintiff's burden in winning these claims. However, "but for" causation does not govern the prima facie case but the pretext portion, when plaintiff has to show the employer's articulated reason for his termination was false and that retaliation was the real reason.

The five-month gap is also sufficient to make out the prima facie case. The Second Circuit has said this in the past, but other cases say that five months is too long. There has not been true consistency in this area. The Second Circuit in this case says that "questions regarding the time gap and causal connection of an alleged retaliatory termination may entail special consideration of the size and complexity of a defendant employer, where termination of employment may involve multiple layers of decision makers, as well as the nature of plaintiff's claims. In some circumstances, a five-month time frame for a decision to fire an employee may not be exceptional." This is important language, as it qualifies the time-frame analysis toward specific cases. The Court of Appeals cites no authority for this proposition, but it is now the law of the Circuit.

We also have a viable retaliation claim for the following reasons: (1) after plaintiff complained about the hostile work environment, a supervisor verbally abused him, threatened to fire him and told him to keep his mouth shut about anything that happened in the hotel or his days would be numbered; (2) a jury must determine if plaintiff was fired over the fight or his discrimination complaints.

While defendants claim plaintiff was really fired over the fight, the jury could find this justification was pretext and the real reason was retaliation under the principle that a prima facie case and evidence of pretext normally suffices to win the case.

The Circuit employs favorable language from Carlton v. Mystic Transportation, 202 F.3d 129 (2d Cir. 2000), for this proposition, seemingly setting aside (for the moment) the pretext-plus formulation that sometimes informs these cases, as per the Court's en banc ruling in Fisher v. Vassar College from 1997. Since plaintiff denies hitting the coworker and management knew that the coworker "had been instigating confrontations with Rasmy repeatedly by making offensive remarks about Rasmy's race, religion, and national origin," the jury can disbelieve management's claim that plaintiff was fired over the altercation. Also, there are disputed facts over whether there were cameras in the hallway where the altercation took place, the existence of which may provide proof that plaintiff did nothing wrong during that incident.


Monday, March 9, 2020

Hostile work environment case is revived in part through neutral acts of abuse

This hostile work environment case collects various doctrines and legal principles over the last two decades in reviving a national origin and religious harassment case. The Second Circuit holds that the district court improperly granted summary judgment for the employer.

The case is Rasmy v. Marriott International, issued on March 6. I represent the plaintiff and argued the appeal. Plaintiff says that various coworkers made repeated vulgar references to his status as a Coptic Christian. These comments were directed toward plaintiff, and the coworkers also made insulting discriminatory comments in plaintiff's presence, though they did not target plaintiff directly He alleges that management ignored his complaints about this harassment. The New York Law Journal summarizes the case at this link. Here, I will set forth what the Court of Appeals (Cabranes, Bianco and Reiss [D.J.] says the trial court got wrong:

1. The district court overlooked precedent holding that "when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim." Case authority for this includes Pucino v. Verizon Communications, 618 F.3d 112 (2d Cir. 2010). Since plaintiff claims coworkers made discriminatory comments and were abusive in ways that were not facially discriminatory, that entire course of behavior may create a hostile work environment, which requires proof that the harassment was severe or pervasive as to alter the working conditions.

2. The district court improperly held that the timing of the harassment after years without incident is that coworkers abused plaintiff not out of hostility toward his national origin and religion but because they were retaliating against him for blowing the whistle on their wage theft. The jury alone draws that inference, not a court on a summary judgment motion. Case authority for this is Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001).

3. The district court held that discriminatory comments that plaintiff overheard but were not directed at him could not support his hostile work environment claim. While the district court said these were "stray remarks," the proper analysis is whether these comments were sufficiently pervasive or chronic to support his claim. "Conduct not directly targeted at or spoken to an individual but purposefully taking place in his presence can nonetheless transform his work environment into a hostile or abusive one." The Second Circuit adopts the EEOC's position in this regard, noting that the amicus brief in this case advances that principle.

4. The trial court also got it wrong in holding that plaintiff did not prove severe harassment because a prior Second Circuit case held that a plaintiff did not have an adverse action after his supervisor assaulted him. But that case was a disparate treatment case, not a hostile work environment case, which applies a different analysis. There is no rigid calculation in determining whether the plaintiff has a viable harassment case, and since plaintiff alleges "numerous incidents of discriminatory treatment over the course of at least three years . . . we consider relevant the total impact on Rasmy on the many alleged episodes of harassment."

5. While the district court recognized that the jury could find that plaintiff alleged "pervasive" harassment, it said plaintiff has no case because he did not allege he had been physically threatened or that the conduct had interfered with his job performance. That piecemeal analysis is not proper under hostile work environment doctrine. Threats and diminished job performance may support such a claim, but it is not required if plaintiff otherwise proves that the overall work environment had severe or pervasive harassment. "By its very nature that determination is bound to raise factual disputes that likely will not be proper for resolution at the summary judgment stage," and besides, "there is a reasonable inference that Rasmy participated in a physical altercation as part of a deteriorating job performance caused by the alleged hostile work environment." And, plaintiff also alleged the harassment caused him significant emotional distress, sending him to a psychiatrist who prescribed him anti-anxiety medication. This suggests the overall work environment had been altered. Authority for this derives in part from Harris v. Forklift Systems, 510 U.S. 17 (1993).

Sunday, March 8, 2020

Bergstein & Ullrich prevail in hostile work environment and retaliation appeal

2nd Circuit Revives NYC Hotel Employee's Hostile Work Environment Claims

Discriminatory remarks not specifically directed at an employee can help form the basis for a claim of bias based on religion and national origin.

By Tom McParland | March 06, 2020 at 02:21 PM
New York Law Journal

A Manhattan-based federal appeals court ruled Friday that discriminatory remarks not specifically directed at an employee can help form the basis for a hostile work environment claim in a decision that revived a lawsuit by a hotel worker who said he was targeted for his religion and national origin.
A three-judge panel of the U.S. Court of Appeals for the Second Circuit said that Gebrial Rasmy, an Egyptian Coptic Christian and formerly a longtime former banquet server at JW Marriott Essex House on Central Park South, could proceed with claims that religious and ethnic insults by his coworkers had violated Title VII of the Civil rights Act of 1964.

Rasmy, who worked at Essex House since 1991, was fired in May 2016 after he reported instances of wage stealing by his colleagues.

Rasmy said in his June 2016 complaint that his complaints were largely ignored within the company, and his colleagues responded with a constant barrage of epithets and expletives, often referring to him among themselves as an “Egyptian rat,” “pretentious Christian” and “gypsy.”

The harassment, Rasmy said, became so bad that he would “cry regularly” and started seeing a psychiatrist who prescribed him anti-anxiety medication.
U.S. District Judge Alison Nathan of the Southern District of New York had dismissed the case on summary judgment in 2018, finding that comments made among other employees of the luxury hotel were not expressly discriminatory and that Rasmy’s working conditions had not changed because he had not been threatened with physical violence.

On appeal, Marriott International Inc. defended the decision and argued that Rasmy’s “relentlessly groundless” accusations of wage theft against coworkers had spurred the name-calling, not his religion or national origin.

In a decision that cited more than two decades of Second Circuit case law, the appeals court held that remarks not directly targeted at Rasmy could nonetheless contribute to a claim of hostile work environment.

In assessing cases under Title VII, the court said, judges must look to the “overall severity and pervasiveness of discriminatory conduct,” and Nathan’s ruling had improperly decided issues that are best left to a jury.
“Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim,” Judge Jose A. Cabranes of the U.S. Court of Appeals for the Second Circuit wrote on behalf of the panel.

The ruling also revived Rasmy’s claims for retaliation, but declined to revisit the dismissal of his claims under New York City and state’s Humans Rights Laws. The remaining claims were remanded to the district court for trial.
Cabranes was joined in the decision by Judge Joseph F. Bianco of the U.S. Court of Appeals for the Second Circuit and U.S. District Judge Christina Reiss of the District of Vermont, who was sitting by designation.

Stephen Bergstein, of Bergstein & Ullrich, on Friday praised the ruling as a “comprehensive” assessment of Second Circuit case law governing hostile work environment claims.

“It takes together different principles that have been in existence for the past 20 years and applies them to this case,” Bergstein said of the court’s 28-page opinion. “It’s a nice, tidy summary of the current state of the law on hostile work environment,” he said.

Mark Saloman, co-chair of FordHarrison’s noncompete, trade secrets and business litigation practice in Manhattan who represented Marriott, declined to comment on the ruling.

Tuesday, March 3, 2020

Say goodbye to Bivens claims

You probably know about Section 1983, the federal civil rights statute that allows you to bring lawsuits over constitutional violations against state and local officials. There is no federal counterpart, however. But in 1971, the Supreme Court issued the Bivens decision, holding that the Constitution recognizes an implied civil rights claim against federal officials in certain instances. Not all cases, but certain cases. As it happens, the Court has only recognized three claims under Bivens over the years, and it mostly takes on Bivens cases to repeatedly tell us that these claims are disfavored and that most of them will fail. That is what happened here.

The case is Hernandez v. Mesa, a Supreme Court ruling issued on February 25. The plaintiff's son was shot and killed by a U.S. border patrol agent. Jesus Mesa, Jr., a 15 year-old Mexican national, was shot on the Mexican side of the border after having run back across the border. The Supreme Court holds that mom has no case under Bivens. The Court determines if you can sue under Bivens by applying a two-part test: (1) does the case involve a "new context" or involve a "new category of defendants" and (2) are there "special factors that counsel hesitation" against recognizing a new Bivens claim. Since the Court has only three times recognized Bivens claims (false arrest against federal agents under the Fourth Amendment, sex discrimination under the Fifth Amendment, and failure to provide adequate medical treatment for inmates under the Eighth Amendment), this test is stacked against new claims.

The Court says there is no Bivens claim here because it has never recognized such a claim before involving border shootings by federal agents. That "new context" means the Court will not extend Bivens to this case. And, since the case involves foreign relations, the Court is hesitant to recognize such a claim. The foreign relations part of the analysis draws from the different views the U.S. and Mexican governments have on the propriety of the shooting. Mexico wants the agent expedited, and the U.S. will not do so. The Court reasons:

Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.  
This is a 5-4 ruling, with Justice Ginsburg dissenting on behalf of the four Democratic appointees. What makes this case notable is that it is clear that the Court in the future will probably do away with Bivens claims altogether. Justices Thomas and Gorsuch state in their concurrences that Bivens was wrongly decided and "the time has come to consider discarding the Bivens doctrine altogether. The foundation for Bivens—the practice of creating implied causes of action in the statutory context—has already been abandoned. And the Court has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny were wrongly decided."

Monday, March 2, 2020

A rare decision finding that plaintiffs have alleged a Section 1983 conspiracy with private actors

This is an unusual case arising from a multi-million dollar financial loan that plaintiffs made to one of the defendants to purchase real property in New York City, including a penthouse condominium. These were private actors. But things went awry along the way, and the case became a Section 1983 conspiracy case that the district court dismissed and the Second Circuit has now reinstated. How did this private loan agreement among private actors become a Section 1983 conspiracy, which must necessarily involve a public actor?

The case is Knopf v. Esposito, a summary order issued on February 25. The entities to whom plaintiffs made the loan -- Sanford and his company, Pursuit Holdings, LLP -- did not repay the loan. When plaintiffs sued them in state court, the Appellate Division ultimately ruled in plaintiffs' favor on their summary judgment motion on their breach of contract claim. Plaintiffs then sought a stay preventing defendants from selling the condominium and to secure the proceeds from any such sale. The Appellate Division ordered that any proceeds from the sale be placed in escrow, but the court allowed defendants to sell the unit. Although the Appellate Division next prohibited defendants from selling the other properties, defendants had by then disposed of the bulk of the proceeds from sale of the condominium and the Appellate Division denied plaintiffs' contempt motion.

All of this is complex, I know. What makes the case interesting is what happened next. At some point in the timeline, Sanford hired an attorney knowing that the new attorney was married to a lawyer, Ringel, who worked for the Appellate Division as an assistant deputy chief attorney. On Sanford's behalf, Ringel agreed to advise the attorneys who were adverse to plaintiffs that the effect of the Appellate Division orders in the contract dispute was to eliminate any restraints on Sanford's sale of the condominium or on the proceeds from any such sale. Sanford had his attorneys call the Appellate Division to request "clarification" on the orders' effect, and they attorneys spoke with Ringel by phone. Ringel agreed that any restraints that the Appellate Division had placed on the sale and proceeds had been removed. This allowed Sanford to sell the property. Plaintiffs' attorneys were not aware of this behind-the-scenes activity with Ringel. The Office of Court Administration ultimately investigated this sequence of events and found that Sanford's attorneys (Ackerman and Feldman) "called Ringel’s direct line at the Appellate Division, despite the fact that her phone number was not available on the court’s website. They accepted her opinion as an authoritative clarification, notwithstanding that she was a mediation attorney, not an attorney in the Clerk’s Office, and that the Knopfs and their attorneys were not present." The Appellate Division's report found that Ringel should have terminated the phone call once she realized the attorneys were representing Sanford, and that her explanations for not knowing to whom to forward the call were not credible.

This evidence supports a Section 1983 conspiracy claim. Ringel's ex parte involvement makes this a public conspiracy, not a private one. In reinstating the case, the Court of Appeals (Winter, Carney and Bianco) notes that district courts cannot accept an alternative narrative advanced by defendants on a Rule 12 motion:

the call made by Akerman and Feldman, seeking “clarification,” was transferred to and handled by Ringel—a mediation attorney whose role did not involve giving procedural (or substantive) advice on pending appeals, and who had no apparent connection to the case except for her marriage to one of Sanford’s lawyers—at least made it plausible that Akerman and Feldman had knowingly and specifically sought to speak to her, with the expectation that she would advise as she did, as the complaint alleged. On a motion to dismiss, district courts may not simply disregard allegations in the complaint and credit instead an alternative narrative advanced by defendants. The Knopfs’ allegations were specific enough and, as was later borne out, all too plausible.
At oral argument, the parties seemed to agree that the ex parte advice that Ringel had given was actually correct. This was a potential due process violation, however, because plaintiff's lawyers had no notice of the call and had no opportunity to be heard on this issue.

Friday, February 28, 2020

Dog seizures by Humane Society may violate the Fourth Amendment

This man sued the local humane society for the seizure and death of his dogs. The Court of Appeals says the plaintiff has a Fourth Amendment case, and the case is remanded for discovery.

The case is Newsome v. Bogan, a summary order issued on February 28. The threshold issue is whether the humane society can be sued for civil rights violations. Normally, private actors cannot be sued under the Constitution. But the Second Circuit has already held that the local SPCA can be sued under Section 1983. That case was Fabricant v. French, 691 F.3d 193 (2d Cir. 2012). The Court in Fabricant said the SPCA "were state actors “when they conducted the search of Fabrikant’s house and the seizure of the dogs.” When that case returned to the Court of Appeals, it held that "“in taking custody of the dogs and making decisions about their proper maintenance and care, the SPCA officials were simply following up on the initial seizure of the dogs, which concededly was state action,” and thus there was “a sufficiently close nexus between the State and the challenged action.” That nexus could occur where “the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, [or] the entity has been delegated a public function by the state.” This was an important holding, as it expanded the classes of defendants in Section 1983 litigation.

The Fabricant case helps Newsome, who also pleads state action by alleging that Humane Society employee Plyter "had participated in the seizure of the dogs from Newsome’s home, and when doing so, Plyter was acting in concert with the state," as "Plyter informed Newsome that the Lyons Police Department had instructed Plyter to consider the dogs abandoned and not release them to Newsome."

Since the unreasonable seizure and removal or killing of an animal violates the Fourth Amendment, the Court of Appeals asks whether plaintiff properly pleads such a violation. He does. The Court reasons:

There is no question that the intrusion here was severe “given the emotional attachment between a dog and an owner.” The governmental interest, on the other hand, appears to have been relatively weak. According to the amended complaint, at least one of the dogs was enclosed in a crate and not obviously capable of interfering with officer safety. There was also no apparent concern with destruction of evidence, as the relevant evidence had been collected from Newsome’s home on a prior occasion. Plyter’s after-the-fact statement that the dogs were aggressive and abandoned does not alter our conclusion. The amended complaint states that Plyter initially told Newsome he could come claim the dogs before calling back to tell him that the dogs were abandoned and aggressive. This backtracking supports the inference that these reasons were pretextual.
The death of the dogs may also violate the Fourth Amendment because the Humane Society, which had the dogs in custody, had no interest in protecting the public from dangerous dogs; they were not wandering loose on the streets. 

Wednesday, February 26, 2020

Rehabilitation Act cannot be enforced through Section 1983

Section 1983 is the federal civil rights statute that allows you to enforce constitutional violations. In certain instances, you can also use Section 1983 to enforce other federal statutes. This is a good thing for plaintiffs' lawyers, as Section 1983 provides for nearly every level of damages, including pain and suffering, punitive damages, attorneys' fees, and injunctive relief. Section 1983 also provides for a longer statute of limitations than other federal statutes. But that courts regularly find that certain federal statutes cannot be enforced through 1983. This is one of those cases.

The case is Costabile v. New York Health and Hospitals Corp., issued on February 25. This is a disability discrimination case brought under the Rehabilitation Act of 1973, which prohibits this kind of discrimination by entities that receive federal money. (It was the precursor to the broader Americans with Disabilities Act of 1990, which covers more entities). I wrote about the main holding in this case at this link. But at the end of the ruling, the Second Circuit also addressed plaintiff's argument that he may enforce the Rehabilitation Act through Section 1983. The Court of Appeals says he cannot do so.

Section 1983 cannot be used to enforce other federal statutes if the other federal statutes have a comprehensive enforcement scheme. The Second Circuit has never taken up this issue with the Rehabilitation Act before, but it resolves it now, adopting the reasoning from other circuits that hold that "§ 1983 cannot be used to alter the categories of persons potentially liable in private actions under the Rehabilitation Act or the ADA." The Second Circuit (Lohier, Sack and Cabranes) is particularly enamored with A.W. v. Jersey City Public Schools, 486 F.3d 791 (3d Cir. 2007) (en banc), which held that "§ 1983 may not be used to enforce the rights provided in the Rehabilitation Act." The Second Circuit concludes:

We conclude that the comprehensive remedial scheme of the Rehabilitation Act suggests that Congress did not intend that § 1983 be an available remedy. Because nothing has been directed to our attention to challenge the “ordinary inference that the remedy provided in the statute is exclusive,” we hold that the rights established in the Rehabilitation Act may not be enforced through § 1983.

Tuesday, February 25, 2020

Plaintiff is not entitled to accommodation for his non-obvious disability

The Court of Appeals holds that, absent a formal reasonable accommodation request, an employer is not always expected to assume that a disabled employee needs a workplace accommodation under the Rehabilitation Act. This is the first time the Court of Appeals has applied its ruling from 2008 that held that employers have to offer a reasonable accommodation if the plaintiff's qualifying disability is "obvious" to management.

The case is Costabile v.  New York City Health & Hospitals Corp., issued on February 25. Twelve years ago, the Second Circuit issued a major ruling under the federal disability laws, Brady v. Walmart, 531 F.3d 127 (2d Cir. 2008), holding that where "the disability is obvious -- which is to say, if the employer knew or reasonably should have known that the employee was disabled,' the employer is obligated to engage in 'an interactive process with their employees and in that way work together to assess whether an employee's disability can be reasonably accommodated.'" Brady represents an exception to the general rule that disabled employees must affirmatively request an accommodation from their employers to trigger the interactive process, in which all sides try to find an accommodation for the employee. The plaintiff in Costabile uses Brady to advance his own case.

"After sustaining a work‐related injury in May 2014, Plaintiff remained on a leave of absence from his position as a permanent carpenter for over a year. During his leave, pursuant to NYCHHC policy, Plaintiff 'provided NYCHHC with regular updates from his doctor as to his condition and ability to work.'” He was fired after he did not respond to the employer's letter that he interpreted to mean that he could only return to work full duty if he could complete all the job functions. "He alleges that, although he could perform the job’s essential functions with or without accommodations, he could no longer perform certain functions, like climbing and descending ladders, that were 'marginal functions' of the carpenter job, even with an accommodation."

Here is the issue: was the employer on notice that plaintiff needed accommodation for his ndisability? Under Brady, "To trigger the duty to engage the interactive accommodations process, the employer must have known, or have had sufficient notice such that the employer reasonably should have known, that the employee has a disability within the meaning of the Act, as opposed to a mere impairment." The Complaint does not permit the inference that management knew. The Court writes:

Plaintiff does not allege that he ever requested an accommodation from Defendants, either formally or informally. It is undisputed that Defendants knew Plaintiff was on an extended disability leave from work‐related injuries. But this alone is insufficient to plausibly allege notice that those injuries constituted a disability under the Act. As Plaintiff alleged, he took work‐related disability leave on multiple prior occasions for conditions that did not prevent him from returning to work without any accommodations.

Similarly, while Plaintiff alleged that Defendants received notice of his multiple sclerosis diagnosis in April 2010, his multiple sclerosis was not a qualifying disability at that time, as he continued working without any accommodations until his 2014 leave. Finally, although Plaintiff alleged that Defendants received “regular updates from his doctor on his condition and ability to work,” he alleged no facts about the content of those updates from which it could plausibly be inferred that Plaintiff’s disability was “obvious” to Defendants.
While this case only involved the Rehabilitation Act of 1973, the reasoning will also apply to the Americans with Disabilities Act of 1990, as both federal disability discrimination statutes generally apply the same legal standards.

Justice Thomas wants to bury Chevron deference

My guess is that most non-lawyers don't know how administrative law works. But lawyers who deal with federal regulations know all about it, and if you walk up to them and say "Chevron deference," they know exactly what you're talking about. Chevron is the name of an important Supreme Court ruling from 1984 that says the courts must defer to how regulatory agencies interpret federal statutes. Justice Thomas has announced he wants to do away with Chevron deference.

The case is Baldwin v. United States. The Supreme Court declined to the hear the case on February 24. Thomas agrees the case is not appropriate for Supreme Court review, but he takes that opportunity to explain his objections to the Chevron ruling. If the Court ever adopts Thomas's view, it will represent a major change in how courts interpret regulations, which affect every aspect of our lives, from product safety to environmental protection to civil rights to you name it.

Here is how Chevron deference works. When Congress passes a law, it often makes the language vague or fails to cover every problem or issue that the statute was intended to address. The regulatory agencies, which are part of the Executive Branch, then issue regulations that provide the details that Congress omitted. This means that federal regulations are often more detailed than statutes. These agencies include the Environmental Protection Agency and the Department of Energy. If someone does not like the regulation, they can file a lawsuit asking the court to reject the agency interpretation. The interpretation will stand if the court thinks the regulation is consistent with the statutory intent or purpose. The idea is that the agencies have experts who know the subject matter and are therefore qualified to issue definitive regulations. Chevron deference gives the agencies the benefit of the doubt in interpreting federal statutes, though from time to time the courts will reject an agency regulation.

Justice Thomas argues that Chevron deference is not consistent with the Constitution because our nation's founding charter gives the courts and only the courts the authority to interpret the laws. The Constitution says nothing about federal agencies or regulations. Both are a creation of the administrative state, which began to flourish in the 20th Century and modern life got too complicated, the country grew and we needed bureaucrats and policy experts to supervise the details of federal policy. The Court cannot delegate the judicial power to federal agencies, Thomas writes. While Thomas himself endorsed Chevron deference in a 2005 Supreme Court ruling, National Cable & Telecommunications Assn v. Brand X, he now repudiates that ruling and says it was wrongly decided.

Justice Thomas often advocates in favor of jettisoning Supreme Court precedents that he believes were wrongly decided. The other justices just as often decline to sign onto his views. No one signed onto his statement in the Baldwin case. That does not mean the others are not in agreement with him. The legal community has been speculating for a few years now that the conservative Supreme Court majority may do away with Chevron deference. None of the justices have advanced that argument as explicitly as Thomas. 

Monday, February 24, 2020

Cavity search verdict is affirmed after the Circuit initially took it away

This case went to trial in the Northern District of New York. Plaintiff alleged that a police officer violated the Constitution in subjecting him to an unlawful manual body cavity search. The jury found in plaintiff's favor but it only awarded him one dollar. That may sound like a hollow victory for plaintiff, but no police officer wants an adverse verdict on his record, and even a one dollar verdict may produce a large attorneys' fees award for plaintiff's lawyer. So the officer moved post-trial for judgment as a matter of law, claiming entitlement to qualified immunity because the law was not clearly established at the time of the violation to put the officer on notice that he was breaking the law. The trial court denied that motion, but the Court of Appeals agreed with the officer, which means the officer ultimately won the case. But then the unexpected happened, and plaintiff is again the winner.

The case is Sanchez v. Bonacchi, a summary order issued on February 21. This case first reached the Court of Appeals last year. In October 2019, after the district court denied the officer qualified immunity and upheld plaintiff's verdict, the Second Circuit found that the officer is entitled to qualified immunity because the law was not clear at the time of the body cavity search that this maneuver was illegal. The Court (Lynch, Lohier and Sullivan) said that Gonzalez v. City of Schenectady, 728 F.3d 149 (2d Cir. 2013), had muddied the waters in this area because the Court in Gonzalez stated that controlling authority in the Second Circuit and the Supreme Court had not yet held that the rule against suspicionless strip or body cavity searches in misdemeanor cases also applied to felony drug arrests. This  meant that Sanchez could not sue Bonacchi for damages, and the verdict was gone.

But after the Court of Appeals issued the first Sanchez summary order, in December 2019, another panel of the Court of Appeals (Newman, Pooler and Jacobs [in dissent]]) issued Sloley v. VanBramer, 945 F.3d 30 (2d Cir. 2019), which held that, as of 2013, when the search in Sanchez's case took place, it was clearly established that a "visual body cavity search conducted as an incident to a lawful arrest for any offense must be supported by a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity." This means that a manual body cavity search, which is more intrusive than a visual cavity search, "must at a minimum be supported by the same reasonable suspicion as a visual cavity search." Sloley is a binding, precedential ruling, which takes precedence over summary orders like Sanchez.

The Sloley ruling was a terrific turn of events for Sanchez. In January 2020, the Court of Appeals (Lynch, Lohier and Sullivan) in Sanchez's case sua sponte recalled the mandate in the Sanchez summary order, vacating that ruling in light of the Sloley decision. The Court ordered the parties in this case to brief the issue of how the Slolely ruling affects the Sanchez case. On February 21, the Court of Appeals formally vacated the October 2019 ruling in Sanchez's case and reinstated the verdict, holding that Slolely demonstrates the law law governing plaintiff's case was in fact clearly established, the officer does not get qualified immunity, and the verdict should stand after all. Sanchez only gets one dollar, but hey, a win is a win, right?

Friday, February 21, 2020

Graffiti art may be protected under the Visual Artists Rights Act

You wouldn't know it from reading from reading the opening paragraphs of this decision, but this case involves the rights of graffiti artists. The Court of Appeals alludes to this by referring to "aerosol art" and "creative destruction" that filled the walls of "a series of dilapidated warehouse buildings" in Long Island City. Bottom line: graffiti artists have prevailed in a lawsuit against a property owner who destroyed the warehouses that featured their artwork. The Court of Appeals agrees that the plaintiffs are entitled to $6,750,000 in damages. This may be the most significant federal ruling ever issued on the rights of graffiti artists.

The case is Castillo v. G&M Realty, LP, issued on February 20. The artwork was located at the 5Pointz site, where some graffiti had permanence but others were painted over quickly. Over time, the site displayed more than 10,000 works of art. When plaintiffs learned the landlord wanted to raze the building to build luxury apartments, the district court denied their application for a preliminary injunction under the Visual Artists Rights Act of 1990, which prevents the destruction of artwork that carries "recognized stature." Although the preliminary injunction denial did not end the case (it only denied plaintiffs immediate relief), the landlord next began to destroy the artwork and banned the artists from the site, refusing them permission to recover the work. The art was then whitewashed. The pre-whitewashed artwork is below.

At trial, the district court found that 45 of the works had achieved recognized stature, and that "the works 'reflected striking technical and artistic mastery and vision worthy of display in prominent museums if not on the walls of 5Pointz.'" The Court of Appeals (Parker, Raggi and Lohier) affirms, finding that that the trial court properly found the landlord willfully destroyed this artwork, protected under the VARA because they have "recognized stature." There is little case law in this area, and the Circuit cites a district court ruling and a Seventh Circuit decision, stating, "We conclude that a work is of a recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community." Artistic quality is the most important factor. The idea is that the VARA protects "the public interest in preserving the nation's culture," so that even a "poor" work by a highly regarded artist, "anything by Monet," merits protection. At trial, plaintiffs proved the graffiti "had achieved recognized stature" through exhibits, credible testimony, and an expert witness."

The Court rejects defendants' arguments that the artwork is not protected when it is temporary. The statute contains no such limitation. And, the Court points out, in 2005, temporary artwork in New York City achieved recognized stature when "Christo" displayed 7,500 orange draped gates in Central Park, known as "The Gates." The Court adds that, in recent years, "street art," much of which is temporary, has emerged as a major category of contemporary art.

As for damages, the district court properly held that the decision to immediately whitewash the artwork after the district court denied the injunction the artwork was willful, triggering enhanced statutory damages. The $6.5 million is the maximum amount under the statute, and the trial court has wide discretion in setting a damages award. Defendants' state of mind is relevant here. The trial court noted that the whitewashing did not completely obscure the artwork, making it easily visible under layers of cheap paint, "reminding the artists on a daily basis of what had happened to them." This half-elbowed effort was also visible to the public.

5Pointz in January 2013. Photo courtesy of Ezmosis via Wikimedia Commons.

graffiti on 5Pointz building

Wednesday, February 19, 2020

Student discrimination case is dismissed

When you file a lawsuit, all things are possible. Some plaintiffs feel like the lawsuit will start the healing process. Some even take solace in knowing their enemies will soon be served with legal process. The lawyer tries to tell his client that lawsuits are not all fun and games, and that the defendant's lawyer will get to take a seven-hour deposition and explore the plaintiff's work record and even his medical records. Then comes the post-discovery motion practice, which will delay the trial for a year. Of course, this assumes the case will make it out of the gate. Some cases do not.

The case is Johnson v. New York University, a summary order issued on January 31. Clients think they will have their "day in court," but your day in court is really the day you file the lawsuit. A trial is not guaranteed. Neither is pre-trial discovery. If the trial court thinks the case does not state a plausible claim, then the case will be dismissed at the outset, and the fun stops.

In this case, plaintiff alleged that NYU discriminated against him on the basis of gender in violation of Title IX of the Civil Rights Act. As the Second Circuit (Hall, Bianco and Sullivan) summarizes his claims, "Johnson alleged that NYU discriminated against him based on his race and gender when they expelled him in 2007 after he was criminally charged with (but acquitted of) grand larceny, and then refused to readmit him in 2017." The Court says the 2007 claim is untimely, as it falls outside the three-year statute of limitations. Focusing on the 2017 claim, the Court says the complaint does not assert a claim for racial discrimination. Plaintiff argues that NYU disciplined three white students differently after they were accused (or convicted) of crimes. Plaintiff's instincts were correct. You can assert a discrimination case if others were more favorably treated. That permits you to argue the unfair treatment was racially-motivated.

But the rules guiding motions to dismiss require the plaintiff to assert specific facts in support of his claim. Conclusory allegations will not survive a motion to dismiss. The Supreme Court said this in Ashcroft v. Iqbal, its seminal 2009 decision that changed how the lower courts handle motions to dismiss under Rule 12. The plaintiff must also show the favored comparators had similar facts. "While  a  plaintiff  may  'raise[]  an  inference  of  discrimination  by showing that he was subjected to disparate treatment' in comparison to others, the comparators must be 'similarly situated' to the plaintiff 'in all material respects.'”

This is a difficult standard. Plaintiff loses. "We agree with the district court that the white comparators Johnson cited did not meet this standard since none of the comparators had sought (let alone been granted) readmission after being expelled. It is true that comparators need not be identical, but there must be at least a 'reasonably close resemblance of the facts and circumstances,' which was not the case here."