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. 

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.

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. 

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?

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.

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."

Inmate's medical indifference case fails

Inmates do have constitutional rights, you know. Under the Eighth and Fourteenth Amendments, correctional facilities must provide inmates with proper medical care, no matter what crimes the inmates were convicted of. However, the legal burden of proof in winning these civil claims is high, and most of these claims fail. This is one of the failed claims.

The case is Roice v. County of Fulton, a summary order issued on February 6. Plaintiff was a pre-trial detainee, which means he was not yet convicted of anything and was incarcerated the county jail. That means Roice proceeds under the Fourteenth Amendment, which provides a more generous legal standard. Under Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017), a case that I briefed on appeal, the Court of Appeals interpreted recent Supreme Court precedent to allow pre-trial detainees to win if they show the defendants knew or should have known about the excessive risk to the inmate's health or safety but did not provide proper medical treatment.

Plaintiff says the Fulton County jail did not properly respond to his complaints about abdominal pain and nausea, and that this led to hospitalization and surgery for severe pancreatitis. But while plaintiff says he began complaining prior to May 28, 2014, and that the jail ignored those complaints, the record tells another story. The Court of Appeals (Leval, Raggi and Livingston) says that the "overwhelming evidence" shows that, prior to May 29, plaintiff had not complained to staff about symptoms that might indicate pancreatitis. He did submit many handwritten medical request forms prior to that date, but none mentioned abdominal pain or vomiting. At deposition, plaintiff testified that he "may not have" complained about nausea and vomiting to the jail's medical providers, and that he "[could not] remember but he thought [he] did." That kind of testimony will not get you a trial on a constitutional claim alleging deliberate indifference to serious medical needs. 

Also hurting plaintiff's case is evidence that jail employees appeared to provide plaintiff extensive and consistent medical care for three weeks before he went to the hospital for surgery. While plaintiff claims the jail should have known he was in a medical emergency, "symptoms such nausea [and] abdominal pain" may be consistent with a diagnosis of gallstones or developing pancreatitis, but they are also consistent with many other medical conditions which do not require hospitalization. That appears to be the heart of this case. Plaintiff was in distress, but that distress could have resulted from other causes, and since the jail did provide him with consistent medical treatment all along, he cannot win his case under the Fourteenth Amendment.

Amended ADA does not revive Plaintiff's migraines case

Congress amended the Americans with Disabilities Act in 2008 to make it easier for plaintiffs to show they have a protected disability. The law was amended in response to Supreme Court rulings that narrowed the scope of the Act. The amended Act is called the ADAAA. The question now becomes this: which impairments or conditions may predicate ADAAA lawsuits that were unable to succeed in the past?

The case is Woolf v. Strada, issued on February 6. Plaintiff worked for Bloomberg LLP as a sales representative. He began suffering migraine headaches that left him temporarily incapacitated, impairing his ability to work. At some point, plaintiff told management that the migraines placed him at risk of a stroke or heart attack resulting from work-related stress, which according to his neurologist, constituted the primary trigger for the migraines. Plaintiff was ultimately fired after receiving a series of low performance reviews. He says the real reason for his termination was his disability. To prevail he must show that the migraines are a protected disability under the ADAAA.

Plaintiff says the migraine headaches are a disability under the ADAAA because they substantially limit one or more major life activities: working. Under the cases interpreting the pre-ADA amendments, "working" was not a protected disability unless the plaintiff was unable to work a class, or broad range of, jobs. That equation made it difficult to win ADA claims, because plaintiffs were often able to work jobs other than the ones they were fired from (or denied an accommodation for). Plaintiff argues on appeal that the district court got it wrong in dismissing his case in relying on pre-amendment cases because the amended ADA expressly requires courts to interpret the Act "in favor of broad coverage of individuals" and that an impairment that "substantially limits one major life activity need not limit other major life activities in order to be considered a disability." That's a great argument, but the Court of Appeals (Cabranes, Sack and Failla [D.J.]) rejects it, and plaintiff loses.

The Court says that, despite the favorable statutory construction model advanced in the amended ADA, 

nothing in the ADAAA's text, or its legislative history for that matter, suggests that Congress intended to modify, let alone abandon altogether, the well-established understanding that an employee's "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." This longstanding, common-sense principle of law recognizes that employees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a "disability." Rather, an employee alleging a substantial limitation in the major life activity of working must show that the limitation affects the ability to "perform a class . . . or broad range of jobs."

Had Congress intended to change this fundamental principle of law in the ADA's regulatory scheme, Congress could have done so. Indeed, Congress "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes." We decline to read a limitation into the statute that was so clearly not enacted by Congress.

The Second Circuit notes that all other courts around the country that have taken up this issue agree that the ADAAA does not alter the longstanding rule that "working" is not a major life activity unless the impairment affects a broad range of jobs. Since plaintiff in this case "does not attempt to show that his work-induced impairment substantially limited his ability to work in a class or broad range of jobs, no reasonable factfinder could conclude that Woolf has a 'disability' within the meaning of the ADA." The case is dismissed for good.

Second Circuit will hear a Fair Housing Act case en banc

The Second Circuit normally hears cases in three-judge panels drawn from 26 judges who sit on the Court. If an unsatisfied litigant loses in the Second Circuit, she sometimes asks the full court to hear the case, in which of the active judges hear the case en banc. The Second Circuit rarely hears cases en banc. The last time they did so in a civil case was in 2017, when the Court heard Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018), as a means to overrule a prior Second Circuit ruling on gay rights and employment discrimination. The Court has just announced that it will hear another case en banc, this time addressing housing discrimination.

The case is Francis v. Kings Park Manor, Inc., issued on February 10.What occasions this infrequent procedure is a ruling the three-judge panel issued in December 2019, found at 944 F.3d 370 (2d Cir. 2019), in which the Court held by a 2 to 1 majority that the Fair Housing Act holds landlords liable if they to stop known racial harassment in their buildings. Here is how the Court summarized the issues in this case:

Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

The main question before us is whether a landlord may be liable under the FHA for intentionally discriminating against a tenant based on the tenant’s race. In this case, the landlord allegedly refused to take any action to address what it knew to be a racially hostile housing environment created by one tenant targeting another, even though the landlord had acted against other tenants to redress prior, non-race related issues. In holding that a landlord may be liable in those limited circumstances, we adhere to the

we assume without deciding that intentional discrimination is an element of an FHA violation and conclude that Francis’s complaint, viewed in the light most favorable to Francis, plausibly and adequately alleges that the KPM Defendants engaged in intentional racial discrimination. Specifically, the complaint alleges that the KPM Defendants “discriminat[ed] against [Francis] by tolerating and/or facilitating a hostile environment,” even though the defendants had authority to “counsel, discipline, or evict [Endres] due to his continued harassment of [Francis],” and also had “intervened against other tenants at Kings Park Manor regarding non-race-related violations of their leases or of the law.” Joint App’x 19–20. In other words, Francis has, in our view, adequately and plausibly alleged both that the KPM Defendants were actually aware of Endres’s criminal racial harassment of Francis — harassment so severe that it resulted in police warnings and the arrest and eventual conviction of Endres — and that the defendants intentionally refused to address the harassment because it was based on race, even though they had addressed non-race–related issues in the past, including, it is reasonable to infer, tenant-on-tenant harassment. See Wetzel, 901 F.3d at 864. Accepting these allegations as true, the KPM Defendants “subjected [Francis] to conduct that the FHA forbids.”

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 379 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

FHA’s broad language and remedial scope.

 . . .

we assume without deciding that intentional discrimination is an element of an FHA violation and conclude that Francis’s complaint, viewed in the light most favorable to Francis, plausibly and adequately alleges that the KPM Defendants engaged in intentional racial discrimination. Specifically, the complaint alleges that the KPM Defendants “discriminat[ed] against [Francis] by tolerating and/or facilitating a hostile environment,” even though the defendants had authority to “counsel, discipline, or evict [Endres] due to his continued harassment of [Francis],” and also had “intervened against other tenants at Kings Park Manor regarding non-race-related violations of their leases or of the law.” In other words, Francis has, in our view, adequately and plausibly alleged both that the KPM Defendants were actually aware of Endres’s criminal racial harassment of Francis — harassment so severe that it resulted in police warnings and the arrest and eventual conviction of Endres — and that the defendants intentionally refused to address the harassment because it was based on race, even though they had addressed non-race–related issues in the past, including, it is reasonable to infer, tenant-on-tenant harassment. Accepting these allegations as true, the KPM Defendants “subjected [Francis] to conduct that the FHA forbids

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 373 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968 (“FHA” or “Act”), 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The main question before us is whether a landlord may be liable under the FHA for intentionally discriminating against a tenant based on the tenant’s race. In this case, the landlord allegedly refused to take any action to address what it knew to be a racially hostile housing environment created by one tenant targeting another, even though the landlord had acted against other tenants to redress prior, non-race related issues. In holding that a landlord may be liable in those limited circumstances, we adhere to the FHA’s broad language and remedial scope. We therefore vacate the judgment of the United States District Court for the Eastern District of New York (Spatt, J.) dismissing Donahue Francis’s claims under the FHA and analogous New York State law, as well as his claims under 42 U.S.C. §§ 1981 and 1982, and remand for further proceedings.

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 373 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968 (“FHA” or “Act”), 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The main question before us is whether a landlord may be liable under the FHA for intentionally discriminating against a tenant based on the tenant’s race. In this case, the landlord allegedly refused to take any action to address what it knew to be a racially hostile housing environment created by one tenant targeting another, even though the landlord had acted against other tenants to redress prior, non-race related issues. In holding that a landlord may be liable in those limited circumstances, we adhere to the FHA’s broad language and remedial scope. We therefore vacate the judgment of the United States District Court for the Eastern District of New York (Spatt, J.) dismissing Donahue Francis’s claims under the FHA and analogous New York State law, as well as his claims under 42 U.S.C. §§ 1981 and 1982, and remand for further proceedings.

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 373 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

The Second Circuit first issued an opinion in this case in March 2019. Then the opinion was withdrawn, and the same two-judge majority (Judges Lohier and Pooler) issued a new opinion with a revised analysis. In dissent, Judge Livingston argued that this holding represented an unwarranted expansion of liability under the Fair Housing Act. Judge Livingston dissented in both opinions. In the second case, she wrote:

The majority’s original opinion relied heavily on the HUD Rule and an analogy to Title VII case law in holding that the FHA imposes liability on landlords for “failing to take prompt action to address a racially hostile housing environment created by one tenant targeting another,” regardless of the landlord’s discriminatory intent. Francis v. Kings Park Manor, Inc., 917 F.3d 109, 114 (2d Cir.), opinion withdrawn, 920 F.3d 168 (2d Cir. 2019) (Francis I). That opinion and my original dissent were withdrawn within a month of their issuance.

Now, the majority offers a new opinion that again rejects the district court’s able analysis, but this time based on a theory not even relied upon by the Plaintiff in this case: that Francis has plausibly alleged intentional discrimination on the part of the KPM Defendants due to their failure to intervene in the ongoing police investigation following Francis’s notification that this investigation was underway. This is an untenable conclusion. Indeed, as outlined above, Francis himself does not argue that the KPM Defendants are liable because they acted with racial animus.

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 383–84 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

Only "active" Second Circuit judges can hear the case en banc. Thirteen judges sit on the Second Circuit. (The rest are on senior status). If you are wondering, six of the active judges are Democratic appointees. Seven of the active judges are Republican appointees, four of them appointed by the current president.

MTA can require employees to provide medical documentation to justify their absences

I am sure the plaintiff in this case has no real understanding why he lost this case. But lost he did, for the kind of technical reasons that only a lawyer can love. The Court of Appeals holds that a worker who missed work because he was taking prescribed narcotics and was therefore unable to work for the railroad can be disciplined because he did not provide management with the proper medical forms.

The case is Lockhart v. MTA Long Island Railroad, issued on February 4. Under the Federal Rail Safety Act, employees cannot be fired for engaging in protected activity. In this case, plaintiff said, the protected activity was refusing to violate safety regulations in not coming to work because he was taking Vicodin after a dental procedure. He was then unable to work because he was taking Oxycodone because of a work-related shoulder injury. The problem was that plaintiff did not turn in the medical form that the MTA required to authorize these absences, resulting in his discipline. Was that discipline in violation of the FRSA? Having heard oral argument in this case in June 2018, it took the Court of Appeals (Winter, Calabresi and Livingston) more than a year to decide it, ruling that the discipline was warranted because plaintiff did not complete the required forms.

The Court summarized the framework for resolving these cases. It applies the same burden-shifting scheme that governs Title VII and other statutory retaliation case, requiring the plaintiff to show that he engaged in protected activity and was disciplined under circumstances creating an inference of retaliation, such as when the discipline takes place shortly after the protected activity. If that prima facie case is made out, to win the case, plaintiff then has to show the employer's reason for the discipline is a pretext for retaliation. Pretext is often shown through evidence that the employer's articulated reason is poppycock.

Plaintiff loses the case because his absences are not protected activity under the statute. His absences were not accompanied with the forms that MTA required employees to complete. The Court says the statute does nor prevent employers from requiring employees to satisfy internal requirements to prove the medical leave is legitimate. The Court states, "it would be rather adventurous to infer an FRSA requirement that a railroad take employees at their word that the reason for a failure to report to work was an easily verifiable doctor-prescribed mind-altering drug." Case law in other medical cases, including the Family and Medical Leave Act and the Americans with Disabilities Act, also permit employers to require employees to turn in medical documentation to support their absences, and that principle now applies under the FSRA.

FLSA settlements cannot assume the lawyer gets only 33 percent of the amount

If you handle wage and hour case under the Fair Labor Standards Act, your life changed in August 2017, when the Second Circuit ruled that private parties cannot settle these cases without court approval. The court reached that decision in Cheeks v. Pancake House, 796 F.3d 199 (2d Cir. 2017), which exempted the FLSA from the general principle that parties in civil rights and other cases can settle on their own without court intervention. The idea is that Congress wanted workers to recover their full entitlement to lost wages for overtime and minimum wages. Cheeks is a relatively new case, so the courts are still working through the details. This case is the most significant post-Cheeks case thus far.

The case is Fisher v. SD Protection Inc., issued on February 4. The parties settled this case in the amount of $25,000, agreeing that $23,000 of that amount would go to plaintiff's lawyer, and plaintiff would get the rest. To the uninitiated, this may seem unfair to plaintiff, as the lawyer gets most of the money. But many FLSA cases do not involve large damages, and the lawyer may spent much time in preserving the plaintiff's rights anyway. Attorneys' fees case law recognizes that the legal fees may sometimes exceed the value of the case. In this action, the lawyers actually expended more than $50,000 on the case.

Under the Cheeks review, the district court approved the $25,000 amount, but it rewrote the agreement to give the plaintiff approximately $15,000, or about 60 percent of the agreement. The lawyers got only $8,250 in fees, or 33 percent of the total amount. The court also awarded plaintiff's counsel about $1,700 in costs. The issue on appeal is whether the district court was allowed to do this under Cheeks. He was not. The Court of Appeals rules that the district court abused its discretion.

The Court of Appeals says that when the trial disapproves of the FLSA settlement, it cannot rewrite it; it must instead either reject the agreement or allow the parties to revise it. We have two major holdings.

First, the district court cannot presume that the proper attorneys' fees allocation from a FLSA settlement is 33 percent. Sure, that's usually the going rate for settlements, and district courts have modified FLSA settlements under Cheeks to reflect that percentage, determining that the one-third amount is proportional to the overall settlement. But attorneys' fees decisions in other contexts, including Title VII cases, hold that attorneys' fees cannot be reduced to ensure proportionality with the overall value of the case, and the FLSA does not specifically require proportionality in awarding fees. And, the Court finds, proportionality would not make sense in FLSA cases because these cases are often not worth a lot of money, and it may take time-consuming lawyering to ensure the plaintiffs get proper relief. This is especially true where FLSA plaintiffs do not earn much money to start with.

The district court also abused its discretion in rewriting the settlement agreement. There is no case law on this issue under the FLSA, but cases in other contexts hold that trial courts cannot rewrite settlement agreements that they deem unfair or unjust. That principle now applies in wage and hour cases. While trial courts may adjust the attorneys' fees entitlement when a prevailing party moves for fees in civil rights cases, this is not that scenario, as this FLSA settlement was agreed to by the parties and presented to the district court for its approval.

The case returns to the district court to again review the FLSA settlement, noting that plaintiff's maximum recovery in this case would have been around $11,000. The appellate court also notes that plaintiff's lawyer conducted much work on this case; that would also bear upon the fairness of the settlement. The trial court may advise the parties what it would deem a fair settlement, but it cannot rewrite the agreement.