Sort of like a qualified immunity for private defendants

In 2018, a divided Supreme Court said that non-union public employees can withhold their "fair share" union dues if the union activity, including the act of negotiating a new labor contract, violated the First Amendment. Under this interpretation of the free speech clause, forcing employees to pay union dues constitutes coerced speech. This was an expansive interpretation of the First Amendment, to say the least. It also encouraged public employees to withhold their union dues even as they continued to benefit from the union's advocacy. That ruling raises a new issue, addressed in this case.

The case is Wholean v. CSEA SEIU Local 2001, issued on April 15. That Supreme Court ruling was called Janus, which overruled a 1977 Supreme Court ruling called Abood. After Janus came down, plaintiffs asked that the union pay back the union fees they paid out before the Supreme Court issued Janus. So they wanted a retroactive reimbursement of fees that the Supreme Court said in Janus violated the First Amendment.

Is the union required to make this reimbursement? In 1991, the Supreme Court said in Wyatt v. Cole, 504 U.S. 158 (1992), that private citizens who rely unsuspectingly on state laws they have no reason to believe were invalid should have some protection from liability. This is sort of like a qualified immunity doctrine for non-governmental actors. In Wyatt, several Justices believed that a good-faith defense for private individuals who rely on precedent has always existed in our legal system. The Court of Appeals (Cabranes, Lohier and Reiss [D.J.]), writes:

Since Wyatt, every Circuit Court of Appeals to have considered the question has held that a good-faith defense exists under § 1983 for private individuals and entities acting under the color of state law who comply with applicable law, including three circuits who have concluded that a good-faith defense is available to unions that relied on Abood and applicable state law in collecting fair-share fees prior to Janus.

I must say, I was not aware of this good-faith defense to lawsuits in the private context. But it was there all along. The defendant union in this case can invoke the good-faith defense, the Second Circuit says, because noting in Janus suggests the ruling was retroactive, and the unions collected union dues in reliance on Supreme Court precedent that was controlling at the time, the Abood case.

Inmate wins deliberate indifference appeal after another inmate assaulted him

We all know that prisons are violent places. Did you know you can sue the correction officers if they allow prison fights to take place? These cases are hard to win, but this inmate has convinced the Court of Appeals that he has enough evidence for a trial.

The case is Morgan v. Dzurenda, issued on April 15. While incarcerated in Connecticut, plaintiff cooperated with correction officers about gang activity at the prison, developing a reputation as a snitch. The snitch reputation followed plaintiff as he as transferred to a new prison, and he filed an inmate request form for assistance after another inmate, Rodriguez, called him a smith and threatened to snap his neck. A prison captain minimized plaintiff's concerns and told him to "learn to fight like a man" and "stop being a snitch." Plaintiff continued to complain about Rodriguez's threats. You know what happens next, right? Plaintiff's enemy beat the hell out of him.

The Eighth Amendment governs cases like this. The plaintiff must show the jailers were deliberately indifferent to the threats. This extends to protecting prisoners from violence at the hands of other prisoners. The Supreme Court said that in Farmer v. Brennan, 511 U.S. 825 (1994). Inmates have to jump through all sorts of hoops to meet this standard, including proving that the defendant was both aware of the potential harm to the plaintiff and that he was deliberately indifferent to to risk of serious harm. Deliberate indifference is one of the most difficult standards to meet in constitutional law. But plaintiff could win the case, the Court of Appeals (Pooler, Calabresi and Park) says, because plaintiff alleges that the jailers ignored his written and verbal pleas for help, that the jailers were dismissive toward those concerns, and that plaintiff was hurt by the very person he was complaining about. In reversing the grant of summary judgment for the defendants, the Court of Appeals concludes:

we find that Morgan raised a question of material fact as to whether “a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,” such that a trier of fact could find that Chapdelaine and Godding “had actual knowledge of the risk” posed by Rodriguez. 

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Bad eyewitness testimony entitles defendant to a new trial

Every judge has his or her own passions. Over the years, Judge Rakoff of the Southern District of New York has written extensively about criminal justice, the power of prosecutors, the death penalty, and related issues addressing the fairness (or unfairness) of the criminal justice apparatus. The New York Review of Books publishes some of his articles. In this case, he addresses a similar issue about the ineffective assistance of counsel and the prejudicial use of eyewitness testimony. He finds that the defendant in this case was denied proper representation because counsel did not object to questionable eyewitness and other evidence.

The case is United States v. Nolan, issued on April 15. Judge Rakoff is sitting by designation in this appeal. Judges Sack and Hall agree with his analysis. Judge Rakoff surveys the recent social science research on the unreliability of eyewitness accounts. Then he gets into the facts, involving the defendant's alleged involvement in an armed robbery. The witnesses identified defendant, but all four such identifications had serious reliability problems, i.e., they did not identify defendant until they saw his photo in an array presented to them more than one month after the crime. But defendant's lawyer did not move to preclude these eyewitness accounts, and defendant was found guilty, as the prosecutor relied in part on those eyewitness accounts in summation. He now gets a new trial on this habeas corpus appeal.

The Second Circuit says that defense counsel could have prevailed on such a motion to preclude based on these problematic eyewitness accounts. And even if the motion failed, counsel could have educated the trial judge about "the frailty of the identifications." Judge Rakoff points out, in part, that while all the victims were black and Hispanic, defendant is white. "It is well established that eyewitnesses are materially less accurate when identifying individuals of a different race, or a different ethnicity." Also, many weeks elapsed between the crime and when the victims were shown the photo array. Precedent and social science research confirms that such a time gap is troublesome. The Court adds:

Finally, and perhaps most egregiously, the police employed highly irregular procedures in pursuing the witnesses’ identification of Nolan, potentially biasing the victims’ identifications by, for example, allowing them to talk among themselves about Nolan’s identification and allowing them to view his photos on Facebook. Studies have demonstrated that the memories of eyewitnesses are extremely susceptible to contamination by external information, a common source of which is “cowitness interaction.”

Another problem with trial counsel's performance was that he did not object when the prosecutors showed the jury defendant's Facebook picture holding a BB gun that looks like a handgun. The photo is not direct evidence of the crime, and it does not place defendant at the scene of the crime. While the government says the photo proves defendant's access to and comfort with firearms, that's a weak argument, the Court says, and it "must be weighed against the obvious prejudice to the defendant that would result from showing the jury a photo of a defendant charged with armed robbery posing with a gun of any kind." In the least, counsel should have asked the trial court for a limiting instruction on this photo to minimize the unfair prejudice. What it all means is that the conviction is vacated and defendant will have a re-trial.

Exciting res judicata issue headed for New York Court of Appeals

Well, maybe not exciting, but important. This case presents a dilemma. Plaintiff says she was denied overtime wages in violation of the Fair Labor Standards Act and the New York Labor Law. But her federal lawsuit was not her first go-round on this issue. She had previously filed an action in small claims court for nonpayment of wages, and that court awarded her $1,000. Does that mean plaintiff cannot now sue again in federal court?

The case is Simmons v. Trans Express Inc., issued on April 13. We got ourselves a res judicata problem. That's a Latin phrase for "another court already took up this issue, so you can't raise it here." Under New York City Civil Court Act section 1808, the res judicata statute pertaining to New York City small claims judgments,

A judgment obtained under this article shall not be deemed an adjudication of any fact at issue or found therein in any other action or court; except that a subsequent judgment obtained in another action or court involving the same facts, issues and parties shall be reduced by the amount of a judgment awarded under this article.

One interpretation of this section is that Section 1808 narrows the preclusive effects of res judicata for small claims judgment and allows for subsequent litigation of claims arising from the same or similar facts as those arising from the small claims actions. Except that your small claims judgment reduces the federal judgment so you don't recover twice. That's how plaintiff sees it. The Second Circuit agrees that plaintiff's interpretation "has persuasive force." But the appellate divisions have reached different interpretations. The confusion seems to turn on whether the courts think the second lawsuit raises claims that are sufficiently related to the small claims actions. The Second Circuit (Hall, Sullivan and Bianco), writes:

We are thus left to survey a landscape of conflicting Appellate Division decisions. All the New York courts that have interpreted Section 1808 agree that it has some preclusive effect, despite the statute’s clear language that “a subsequent judgment obtained in another action or court involving the same facts, issues and parties” would seemingly not be precluded but merely be “reduced by the amount of a judgment awarded” in small claims court. However, the New York courts do not agree on the details of Section 1808’s preclusive effect. On the one hand, the Second Department interprets Section 1808 not to preclude a plaintiff from asserting claims in Supreme Court that arise out of the same facts or occurrences as claims previously asserted in small claims court. On the other hand, the First and Third Departments interpret Section 1808 to bar such claims.

When the Second Circuit is confronted with a state law issue that has not clearly been resolved in the state courts, it certifies the issue to the New York Court of Appeals, which can then issue a definitive ruling. That is what the Second Circuit does here. And that's where this issue is now headed.

Third Department holds that falsely reporting hate crime is not disorderly conduct

The jury properly found this defendant had falsely reported a racially-motivated assault on a bus transporting SUNY Albany students back to the campus one night. The appellate court reaches that holding because it cannot find evidence in the video footage of racist comments. But the conviction is overturned in any event because the Appellate Division, Third Department, says the provision of the disorderly conduct law under which the defendant was convicted does not criminalize public, noncommercial speech, even if false.

The case is People v. Burwell, issued on April 9. The statutory provision is P.L. 240.50(1), which makes it unlawful to "falsely report[] an incident . . . when, knowing the information reported, conveyed or circulated to be false or baseless, he or she initiates or circulates a false report or warning of an alleged occurrence . . . of a crime . . .  under circumstance in which it is not unlikely that public alarm or inconvenience will result."

This provision is unconstitutional because it regulates speech based on content in that it only criminalizes a certain type of speech. Even false speech is protected under the First Amendment, but only this kind of false speech is illegal under the statute. There is in fact a compelling governmental interest in singling out this kind of false speech, i.e. hate crimes, as the government has the right to prevent public alarm and the waste of public resources predicated on false reports. Even so, the statute does not attack this misconduct from the least-restrictive means, as required under the First Amendment, because the defendant's false comments (including her comments on Twitter) are not the kind of "public alarm or inconvenience" that the statute was intended to prohibit. The statute is impermissibly broad under the First Amendment.

The Third Department goes on to ask, "although it was not unlikely that defendant's false tweets about a racial assault at a state university would cause public alarm, what level of public alarm rises fo the level of criminal liability?" General concern by those reading the tweets "does not rise to that level, nor does proof adduced at trial, which established that defendant's tweets were 're-tweeted' a significant number of times," which constituted nothing more than "a charged online discussion about whether a racially motivated assault did in fact occur, which falls far short of meeting the standard set forth in" Justice Breyer's concurrence in United States v. Alvarez, 567 U.S. 734 (2012). The Appellate Division offers some language that could only arise from the modern era:

The remedy for speech that is false is speech that is true, and social media platforms are information disseminating fora. By the very nature of social media, falsehoods can quickly and effectively be countered by truth, making the criminalizing of false speech on social media not 'actually necessary' to prevent alarm and inconvenience. This could not be more apparent here, where defendant's false tweets were largely debunked through counter speech," which means this portion of the disorderly conduct statute "was not actually necessary to prevent public alarm and inconvenience."

Plaintiffs lose funeral access case under the First Amendment

This case is fascinating and a good example of why we love the Constitution and the federal courts. Plaintiffs sued a town in Connecticut under the First Amendment because they were not allowed to attend their granddaughter's funeral. The First Amendment does protect the right to public assembly. I never thought it could apply to a case like this. The plaintiffs lose, not because there is no First Amendment right to attend a funeral but because there was strong evidence of a bitter dispute between plaintiffs and their adult child, the parents of the deceased.

The case is Rockwell v. Town of Hamden, a summary order issued on April 8. After plaintiffs were told they could not enter the church, they were sent to a public viewing area, where they could hear the audio of the funeral. This must have been quite a family dispute, which the Court of Appeals does not further explain. The Second Circuit is not a place for gossip; it is a place for the law.

First Amendment cases are complex because the courts have to apply multi-part balancing tests to decide whether the plaintiff's speech rights outweigh the governmental interest in maintaining order. In cases like this, courts apply the "time, place and manner" rule, which asks whether the speech restriction is related to governmental objections to the speech or public assembly, and whether the restrictions provide the plaintiff an alternative channel for communications. My experience is that the time, place and manner test tilts the equation in favor of the government, particularly when controversial speakers bring these lawsuits. But this test has been with us since at least the 1980s.

While the plaintiffs were not protesters but instead wanted to attend their granddaughter's funeral, the government still had an important interest in keeping the peace, "particularly in light of the warning by [plaintiff's son] to the Hamden police that the Rockwells' appearance at the funeral would be disruptive and cause his family additional distress." In addition, plaintiffs received an "ample" access to the funeral, at least according to the Court of Appeals (Walker, Cabranes and Sack), because they were sent to the viewing area where other attendees were gathered. This was not a "perfect substitute, the Second Circuit says, but plaintiffs "received as much access as any other person who could not be seated." As the government satisfies the time, place and manner test, it was legally able to keep the plaintiffs away from the funeral, and the case is dismissed.

Supreme Court issues pro-plaintiff age discrimination ruling

A hidden trend over the last decade or so is that the federal courts have redefined the causation standard for employment discrimination cases. In 2009, the Supreme Court interpreted the Age Discrimination in Employment Act to mean that plaintiffs must prove the discrimination was the determining factor in the discrimination, not merely a motivating factor. In another case, the Court then interpreted Title VII's anti-retaliation provision the same way, distinguishing those cases from the language in Title VII's other provisions against disparate treatment, which only require proof that discrimination was a "motivating factor." The new standard is known as "but-for causation. The Supreme Court earlier this year also interpreted Section 1981, which prohibits racial discrimination in the making and enforcement of contracts, to require but-for causation. But it follows that up with this case holding that the more plaintiff-friendly motivating factor test guides the age discrimination law involving federal employees. Even more surprising for those of us who follow this issue, this was an 8-1 ruling.

The case is Babb v. Wilkie, issued on April 6. The reason why the Supreme Court interprets some federal discrimination statutes to require "but-for" causation and others only apply the "motivating factor" test is that the statutes all use different language. Some say that certain forms of discrimination or retaliation "because of" a protected characteristic or activity is illegal. Other statutes say discrimination cannot be a motivating factor. Whether Congress actually intended that these statutes apply different causation standards is a matter for legal scholars. What matters for us is that the Supreme Court is applying the language in the statutes as if Congress did intend that each of these phrases was put there for a reason.

The provision of the Age Discrimination in Employment governing federal employees uses different language than the provisions affecting everyone else. It says that "All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age." Under the plain language of the statute, Justice Alito writes for the majority, "age need not be a but-for cause of an employment decision for there to be a violation of" this provision.

The Supreme Court likes to consult old dictionaries to see what the operative language in federal statutes really means. That means the Court has the best set of dictionaries in America. Using dictionaries from 1966, 1969 and 1976 (the ADEA was enacted in 1967), the Court says that "the phrase 'free from' means 'untainted' or 'clear of (something that is regarded as objectionable)." In "common talk," to be "free from" has the same definition. As for the phrase "shall be made," dictionary definitions "emphasize the important of avoiding the taint." The Court then considers how these phrases interact with each other. In the end, "age must be a but-for cause of discrimination -- that is, of differential treatment -- but not necessarily a but-for cause of a personnel action itself. . . If age discrimination plays any part in the way a decision is made, then the decision is not made in a ay that is untainted by such discrimination." This is complex, but the Court provides an example of how this works:

To see what this entails in practice, consider a simple example. Suppose that a decision-maker is trying to decide whether to promote employee A, who is 35 years old, or employee B, who is 55. Under the employer's policy, candidates for promotion are first given numerical scores based on non-discriminatory factors. Candidates over the age of 40 are then docked five points, and the employee with the highest score is promoted. Based on the non-discriminatory factors, employee A (the 35-year-old) is given a score of 90, and employee B (the 55-year-old) gets a score of 85. But employee B is then docked 5 points because of age and thus ends up with a final score of 80. The decision-maker looks at the candidates' final scores and, seeing that employee A has the higher score, promotes employee A. 

This decision is not “made” “free from any discrimination” because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not). And this discrimination was “based on age” because the five points would not have been taken away were it not for employee B's age. 

It is true that this difference in treatment did not affect the outcome, and therefore age was not a but-for cause of the decision to promote employee A. Employee A would have won out even if age had not been considered and employee B had not lost five points, since A's score of 90 was higher than B's initial, legitimate score of 85. But under the language of § 633a(a), this does not preclude liability.

Inmate wins excessive force and deliberate indifference appeal

The plaintiff in an excessive force case usually has an uphill battle because the police usually have more witnesses and the plaintiff may not be what we would normally call "an upstanding citizen." But if the plaintiff's sworn testimony said the excessive force actually happened, then there's going to be a trial, absent special circumstances. In this case, the plaintiff offered such testimony but the district court dismissed the case. There were no special circumstances permitting that result, so that case is remanded for trial.

The case is Adamson v. Miller, a summary order issued on April 9. Adamson is incarcerated and has no lawyer, so he's fighting this battle on his own. He is up against the formidable New York City law department, yet the Court of Appeals (Bianco, Katzmann and Bolden [D.J.]) reinstates the case.

Plaintiff says he was placed in a chokehold and punched. As the Court of Appeals notes, "Adamson adduced no admissible evidence supporting his version of events apart from his own deposition testimony and affidavit." Under normal circumstances, since sworn testimony can be enough to force a trial on a disputed issue, courts will review that testimony to determine if there is enough for a case. Not this case. The district court "only considered whether Adamson's testimony was corroborated by the testimony of other witnesses." Since in the district court's view the outside witnesses did not provide useful testimony for plaintiff, the case was dismissed. But, the Court of Appeals holds, "This was error. By omitting Adamson's own testimony from its analysis, the district court failed to view the evidence in the light most favorable to Adamson and to favor him with all reasonable inferences."

Under the proper summary judgment analysis, plaintiff has enough for a jury trial because "a reasonable jury can credit his version of events" and find that "placing Adamson in a chokehold and punching him was an excessive use of force."

Plaintiff also has a case for deliberate indifference to his serious medical needs. Following his arrest, after the lineup, plaintiff told the detective he was having trouble breathing, his throat hurt, and either his mouth or throat was bleeding. According to plaintiff, the detective said there was nothing wrong with him. Since plaintiff claimed he was having difficulty breathing and potential internal breathing, the jury could find that his symptoms were sufficiently serious to demand an urgent response. Here again, the district court made a credibility determination in noting that plaintiff's lawyer, who was there at the time, saw no visible injuries after the lineup. This is a credibility termination that only the jury can make. Whether the jury believes plaintiff in light of his lawyer's testimony is another story, but that's how summary judgment works.

Finally, the district court made a credibility determination in finding that plaintiff has no deliberate indifference case because he did not seek medical attention for several months after the lineup, which means he did not suffer serious injuries, according to the trial court. But, the Court of Appeals says, the jury could find otherwise. When plaintiff was at the Nassau County Jail, his requests for medical help were ignored. At least that's what plaintiff says. But since a jury can believe him, it permits the inference that he did need medical help after all, and that the jailers were deliberately indifferent to his medical needs. What does it all mean? It means this case is going to trial.

Summary judgment reversed in retaliation case after trial court weighs the evidence against plaintiff

This case is remanded for trial after the district court said the plaintiff had no retaliation claim under Title VII and the Americans with Disabilities Act. The Court of Appeals emphasizes the dangers of resolving credibility disputes and weighing evidence in discrimination cases where the employer's intent is at issue.

The case is Pistello v. Board of Education of the Canastota Cent. Sch. Dist., issued on April 10. The issue is whether plaintiff, a school teacher, suffered an adverse action after filing a harassment report and accusing the district of failing to comply with individualized educational plans for certain disabled students. The district court said the district's actions postdating the protected activity were not adverse actions under federal law, defined as actions that would deter a reasonably employee from  speaking out again. This is often a factual issue for the jury, but if the employer's actions are too trivial, the courts will find that a reasonable employee would speak up again. Not this case.

In a period of six months after the plaintiff spoke out, she (1) received multiple disciplinary reprimands over actions that arguably involved no real misconduct; (2) received a counseling memorandum and four professional conduct memoranda in six weeks; and (3) was called to participate in four professional misconduct meetings, even though three of the meeting notices were expunged after the plaintiff's lawyer got involved. In addition, an in-class observation of the plaintiff contained inaccuracies (some of the observations were later removed thanks to plaintiff's lawyer), and plaintiff was reassigned to a different building.

Would these personnel actions deter someone from speaking out against discrimination in the workplace? The Court of Appeals answers that question in the affirmative. While it dismissed the case, the district court did note that some of the reprimands against plaintiff "could be described as criticism." That view actually favors plaintiffs position. The district court also said that plaintiff's testimony "seems dubious when considered alongside" contrary evidence in the record. District courts cannot analyze the evidence that way on summary judgment motions. In addition, in rejecting plaintiff's pretext arguments, the district court overlooked the fact that plaintiff was the only teacher who was reassigned to a different academic level and subject area, and it discredited plaintiffs testimony that reassignment could be deemed a "negative" job action.

What do we learn from this? District courts cannot weigh the evidence on summary judgment motions. Nor can they reject plaintiff's reasonable inferences in determining whether there is enough evidence to win at trial. Who knows what a jury will do with this evidence? But a jury will have to hear it out.

Imminent danger allows inmate plaintiff to get IFP status despite "three strikes and yer out" rule

This pro se inmate alleges that the jailers refused to change the battery in his pacemaker. That would give him a constitutional claim. The problem is that he was denied in forma pauperis status because of the "three strikes your out" rule that says the court cannot waive the filing fee if you have previously brought three frivolous lawsuits. The Court of Appeals reverses.

The case is McFadden v. Koenigsmann, a summary order issued on March 27. As it happened, the district court was correct in finding that plaintiff was a three-striker, based on court rulings in his cases from 2011, 2016 and 2017. But there is an exception to the three-strikes rule: the imminent danger rule, which says you can get IFP status if your lawsuit alleges that the constitutional violation this time around places you in imminent danger.

To win under the imminent danger rule, "the feared physical injury must be serious." Here, plaintiff says he was under imminent danger when the jail did not replace the battery in his pacemaker, and that he has ongoing heart disease. So, in this short and sweet opinion, the Second Circuit (Katzmann, Wesley and Park) says plaintiff satisfies the imminent danger rule, and the case may proceed without paying the filing fee.

Pepper spray plaintiff gets no damages after winning excessive force verdict

There are some losses that a client will never understand. The lawyer may understand, but the client will not. This is one of those cases. The Court of Appeals finds that a man who was unlawfully pepper-sprayed is not entitled to any damages for his pain and suffering.

The case is Girbes-Pierce v. City of New York, a summary order issued on March 17. Plaintiff went to trial on his excessive force case against the police. The found that the police did use excessive force, which means that plaintiff won the case. But the jury also awarded plaintiff no money in damages. If you know anything about pepper spray, you know it hurts like the devil once it gets in your eyes. A former client once told me that the problem is that you instinctively rub your eyes when they are pepper sprayed, which only makes things worse. How is it possible that plaintiff gets no money for this, and if the jury decided the case was worthless, why can't the Court of Appeals change that result?

In federal court, we trust the jury to make the correct decision. When the plaintiff wins a trial, the defendant often takes up an appeal, arguing that the jury got it wrong and that the overwhelming weight of the evidence compelled the jury to find for the defendant. Those arguments rarely prevail, since the jury is presumed sufficient competent to weigh the evidence on its own. One exception to this rule is when the jury awards the plaintiff too much money in damages; in that instance, the trial court and the Court of Appeals have authority to reduce the damages to bring the final number in line with comparable cases. But that is a one-way street. When the jury does not award enough money, the federal courts provide very limited recourse. Only in extreme cases will the federal courts order a new trial on the ground that the jury did not award enough money (such as if the plaintiff has undisputed and documented medical injuries and the jury for some reason awards no money).

The district court summarized plaintiff's claims this way:

According to Girbes-Pierce’s version of events, the incident began when his arm was grabbed and he thought he was being mugged, and only when he was pepper-sprayed and handcuffed did he realize that Sikorski and Rule were police officers. He testified that before he was pepper-sprayed he was hit, punched, pushed, and kicked. Girbes-Pierce also testified that he tried to protect himself during the incident by curling up in a fetal position, keeping his arms up to block his neck and face, and screaming “call the police.”

In this case, plaintiff admits that he did not testify about any injuries attributable to the use of pepper spray. I do not know why that would be so; maybe plaintiff's lawyer overlooked that line of questions in handling the direct examination. But, plaintiff argues on appeal, the jury should not have ignored eyewitness testimony about the effects the pepper spray had on plaintiff, including the fact that he was moaning in pain. Is not the moaning sufficient evidence of pain and suffering sufficient to warrant damages for pain and suffering? Yes, the Court of Appeals says, but that does not mean that plaintiff suffered anything beyond de minimus injury. In other words, moaning in pain by itself is not necessarily enough to recover damages for pain and suffering. Since plaintiff did not receive any diagnosis or treatment of rate pepper spray, and the only objective symptom was plaintiff's red eyes from the pepper spray, the jury was allowed to conclude that his injuries lacked any monetary value.

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.

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.

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.

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."

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."