District court grants plaintiffs judmgent as a matter of law in speech retaliation case

A federal judge has vacated a defense verdict and found as a matter of law that public employees suffered workplace retaliation in violation of the First Amendment. This is the rare case where a plaintiff wins such a retaliation case, and where the trial court overrules a jury verdict in favor of the employer on a post-trial motion.

The case is Cole-Hatchard v. Tower-Bernstein, issued by Judge Vratil (visiting from the federal court in Kansas) on May 22. The plaintiffs work for the Rockland County Probation Department. They sent a letter to the County Legislature complaining about matters of public concern. As the district court stated in a prior ruling, "the letter was intended to address the effect of the proposed relocation on (1) the Probation Department’s capacity to meet the needs of the population which it serves; (2) probationers’ ability to report to the proposed relocation and the impact on probation violations; (3) coordination between the Probation Department and other criminal justice agencies; and (4) County revenue."

The employer then issued a Memorandum of Warning, which explicitly stated it was in response to the plaintiffs' protected speech. The only issue at trial, then, was whether the Memorandum of Warning was an "adverse action" under the First Amendment. We define adverse actions as any employer response to speech that would dissuade a reasonable person in the plaintiff's circumstances from speaking out as a citizen. The jury said the Memorandum was not an adverse action. On the post-trial motion filed by plaintiffs, the trial court disagrees, and the plaintiffs win.

The district court says the memo would dissuade reasonable employees from speaking out again because it said that "further communications of this nature may result in disciplinary action taken against you." The defendant called an emergency meeting to reinforce that point. This reprimand "is a textbook example of adverse action," the district court states, citing Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002), and Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 225-26 (2d Cir. 2006), and several other cases, for that proposition.

Defendants argued in part that the memo was not serious enough to deter reasonable employees from speaking out, and that plaintiffs had job security and were therefore able to speak out without fear of reprisal. The district court does not see it that way, stating that "nothing in the evidence suggested that plaintiffs . . . were fragile snowflakes who were lacking in 'ordinary firmness,' that they enjoyed such extraordinary job security as to be invulnerable to the explicit threats and reprimands which they have received from Tower-Bernstein or that they 'knew' they could disregard the Memorandum of Warning and as constituents, speak freely to the Legislature." The real issue is how this memo would impact a reasonable employee; plaintiffs testified that they knew they were taking a risk in sending the protest letter, and that they they did not want to lose their jobs.

Dual plaintiffs in false arrest claim: one has a case, the other does not.

This case tells us that qualified immunity is a real issue for false arrest plaintiffs, but that this immunity can be overcome. We have two plaintiffs here. One is allowed to proceed with her case, but the other case is dismissed for good.

The case is Creese v. City of New York, a summary order issued on May 27. It all started in a bar. We'll start with the losing plaintiff, Janeka Creese, a bartender who was arrested after an officer determined that she had served an underage drinker. The facts are as follows: she was working as a bartender when officer Martinez approached the bar area and N.D., while holding a cup of alcohol, told Martinez that he was not old enough to drink. These facts allowed Martinez to reasonably believe that Janeka had served N.D., even though I am pretty sure Janeka denies serving N.D. The qualified immunity gives the police some slack when the facts could reasonably be interpreted either way. So, while in hindsight Martinez may have been wrong, under qualified immunity, he is free from liability because, in the court's judgment, he acted reasonably under the circumstances. We call this "arguable probable cause," which is another way of saying the officer had an objective basis to find the defendant had broken the law.

Janeka's malicious prosecution claim was also dismissed by the district court. The Court of Appeals agrees that there is no malicious prosecution claim. That claim is distinct from false arrest, which provides for damages until the time of arraignment. Post-arraignment, a baseless prosecution brings you to a new claim. Hence, malicious prosecution. Janeka loses because there was probable cause to arrest; that's a defense to the malicious prosecution claim. Plus, the police found additional evidence to support their belief that plaintiff was guilty: a sworn statement from another underage drinker, B.A., that appeared to identify Janeka as the bartender who had served him.

While Janeka has no case on the docket, her co-plaintiff survives, as the Court of Appeals (Walker, Lynch and Sullivan) reinstates her false arrest lawsuit. This is because we have a factual dispute that a jury must resolve, not a court on a motion for summary judgment. Defendants say another drinker, B.A., identified Debra as the person who served him alcohol at the bar. But, at deposition, N.D. denied saying this. In addition, Martinez did not document B.A.'s identification of Debra at the time of the arrest. All of this evidence could undermine Martinez's account of what happened and lead a jury to find in her favor on the false arrest claim.

George Washington Bridge traffic-blockers are off the hook

This was a creative but dastardly way to punish the mayor of a New Jersey city for not backing the reelection campaign of New Jersey Governor Chris Christie. His assistants decided to close the traffic lanes on the busiest bridge in the country, tangling traffic in Fort Lee in a way that people are still trying to recover from, seven years later. This ruined Christie's political career and landed his associates in serious criminal trouble. The convictions are now overturned.

The case is Kelly v. United States, issued by the Supreme Court on May 7. Everyone knows that what the governor's people did was wrong, even despicable. Ever sit in traffic in Fort Lee (or anywhere else) for two (or more) hours? The defendants bragged about the bridge-closure, which fouled everything up on the first day of school, and an ambulance struggled to reach a heart attack victim. Writing for the unanimous Court, Justice Kagan refers to them as the "cast of characters." She notes that Christie "wanted to notch a large bipartisan victory as he ramped up for a presidential campaign." Little did Christie know that corruption far greater than this would be necessary to be elected president. Gov. Christie was not charged, but he suffered his own humiliation in being deemed too currupt to work in the Trump administration. The traffic tie-up must have seemed like a good idea at the time, and it certainly was a Jersey thing to so. But it was not illegal, the Court says.

The fraud statute under which the defendants were found guilty requires that the defendants commit property fraud. The wire fraud law makes it a crime to effect "any scheme or artifice to defraud, or for  obtaining money or property by means of false of fraudulent representations, or promises." This means that much dishonesty is not covered under the statute, which further means the states have to deal with things like this, not federal prosecutors.

The government tried to defend the convictions by arguing that the defendants lied about a fictional traffic study as an excuse to close the bridge lanes. This scheme would obtain the Port Authority's money or property by taking control of the bridge lanes and depriving the PA of money to pay traffic engineers and toll collectors who performed the work of reallocating the bridge lanes. The Court disagrees, conceding that this realignment was a classic exercise of governmental regulatory power, which cannot by definition constitute an effort to appropriate governmental money. That was not the objective of the scheme, however; the point was to retaliate against the mayor of Fort Lee. The appropriation of governmental money was incidental to the bridge-closure. Bottom line, as Justice Kagan writes, "Not every corrupt act by state or local officials is a federal crime."

It's tough to upset the trial court's factual findings on appeal

This case involves a plaintiff who claimed his employer failed to pay him minimum wages and overtime under the Fair Labor Standards Act. All sides appeal. Plaintiffs argue the district court (which held a bench trial) did not award enough money, and defendants claim the trial court made unrelated errors. The Court of Appeals rejects both appeals, and the verdict stands.

The case is Li v. Chinatown Take-Out, Inc., a summary order issued on May 7. First things first: the Court of Appeals (Calabresi, Wesley and Sullivan) restates the established rule that, even in bench trials, factual findings are rejected on appeal only if the appellate court deems them "clearly erroneous," which is the Mount Everest of appellate review standards.

While plaintiffs claim the district court got it wrong in holding that they did not work certain hours for which they sought damages for non-payment of wages, the trial court was entitled to credit Defendants' testimony over Plaintiffs' recollection and determine that as to these issues, "Plaintiffs' testimony did not sufficiently show the amount and extent of their claimed work." Similarly, Defendants did not bother with nuance in arguing that the plaintiffs' testimony was so "totally unbelievable . . .  that it was unreasonable for the court to accept any of their testimony," including their claim that defendants did not pay them. This argument will not work in the Court of Appeals. Claiming that someone's testimony was too unbelievable to support a judgment is over the top, and since that argument includes the word "believable," we are getting into credibility territory which is for the trial court and the trial court alone. The trial court can believe whatever witnesses it wants, and it can even credit an admitted perjurer over a busload of nuns. When it comes to credibility, the trial court is where the action is.

As for the damages, similar analysis. Defendants claim that the trial court miscalculated them. Under federal and state labor laws, the plaintiffs get 1.5 times the amount of pay for overtime if they work more than 40 hours a week. Defendants argue that the court should have divided the weekly wage by 48, the number of hours it found the plaintiffs worked. But the Court of Appeals says that defendants did not offer credible evidence of an agreement or understanding that the plaintiffs' wages were intended to compensate more than 40 hours per week.

Another Occupy Wall Street free speech case bites the dust

Remember Occupy Wall Street? I do. It was fall 2011. I stopped by Zuccotti Park to say hello and walk around after I argued an appeal at the Second Circuit. I remember the endless drumming which echoed in the canyons of Wall Street. For about three weeks, income inequality was on the agenda. That movement has lost steam, but the lawsuits arising from Occupy are still winding through the courts. Most of the plaintiffs lose these cases on free speech grounds, and this case is no different.

The case is Meyers v. City of New York, a summary order issued on April 30. Plaintiffs claim the police violated the First Amendment in ordering them to disperse after they set up tents and lived in the parks. According to the decision, these living arrangements posed a hazard because protesters violated the sanitation laws and people were using gasoline and diesel generators near large quantities of flammable materials.

The case was dismissed, and the Court of Appeals keeps it that way. The police had probable cause to arrest the plaintiffs for disorderly conduct after they refused to leave the park. "The City had a legitimate interest in ensuring that the Park remained accessible to all members of the public -- most just the protesters -- and free of congestion." The City also had a legitimate reason to clear the Park of unlawful structures. While disorderly conduct requires proof that the public may be inconvenienced, "even in the early morning, it was entirely reasonable for the arresting officers to assume that nearly 150 protesters refusing to leave a public area in downtown Manhattan would risk 'public inconvenience."

Plaintiff also claim they suffered a retaliatory arrest. To win this claim, they have to get around the "time, place and manner" rules that allow the police to throw people out of a public forum if the directive is content-neutral, narrowly tailored to serve a significant governmental interest and allows the protesters "ample alternative channels of communication." This stems from Supreme Court authority that, in my experience, gives the government significant leeway to regulate public spaces. Plaintiffs lose on this claim because the eviction was not based on content, even if the protesters were the only ones who were actually kicked out. The order also promoted significant governmental interests in preventing mounting fire hazards and congestion. As for the ample alternatives, "the protesters were free to exercise their rights in any other public area within the vicinity of the Park (or even to return to the Park after it was cleaned").

2d Circuit upholds large verdict in sexual harassment and retaliation case

The Court of Appeals has upheld an employment discrimination judgment in the amount of $2.88 million in favor of a female civilian teacher at Attica Correctional Facility who suffered discrimination, retaliation and sexual harassment at work.

The case is Small v. Cuer, a summary order issued on May 7. This case originated in the Western District of New York. The jury awarded plaintiff $7 million but the trial court reduced that amount on remittitur. The defendant who appealed, Cuer, was hit with a $3.85 million judgment, which the district court reduced significantly, still leaving the plaintiff with close to $2.88 million against this defendant, a correction officer who became obsessed with plaintiff and made explicitly sexual comments toward her. In particular, defendant told plaintiff that God wanted her to succumb to his unwanted advances. The jury found that the jail did not effectively remediate this harassment, and Cuer eventually retaliated against plaintiff for resisting his advances and complaining about him. Plaintiff eventually stopped coming to work and exhausted her sick leave. DOCCS fired her.

The Court of Appeals (Lohier, Park and Bianco) does not provide much detail about this case, but the district court ruling does, at 2019 WL 1593923 (W.D.N.Y. April 15, 2019). The district court held that plaintiff was entitled to substantial damages for pain and suffering, as proven through testimony from her expert witness and treating psychologist. While the jury awarded plaintiff $1.55 million in pain and suffering, and the trial court said these damages "had a significant overall impact on Small's psychological and physical health" (including PTSD, major depressive disorder, sleep phobia, etc.), as the discrimination lasted months and not years, that amount shocks the conscience under federal law. The trial court reduced that amount to $500,000. The court cited comparable cases in support of this reduction, including Chopra v. General Electric, 527 F. Supp. 2d 230 (D. Conn. 2007), and Ramirez v. New York City OTB, 112 F.3d 38 (2d Cir. 1997).

The district court ruling is not clear about this, but it looks like the jury found that plaintiff was constructively discharged. Hence, the large damages award for lost wages. Constructive discharge claims are difficult to win in the Second Circuit, as the plaintiff must show the discrimination was so egregious that a reasonable person would have no choice but to resign. But it does not look like defendant challenged that portion of the verdict post-trial. He did challenge the punitive damages award, which was $50,000. But the district court found that that amount did not shock the conscience, as (1) the discrimination was reprehensible; and (2) the amount is not disproportionate to the compensatory damages award (and only a fraction of that award, not a multiple of it).

No ineffective assistance where counsel told the jury his client paid to have someone shot in a contract killing

Picture this: you are on trial, charged with conspiracy for murder-for-hire, or contract killing. You are in federal court, and if you are found guilty, you will be sentenced for life. You eagerly await your attorney's summation, when he is expected to tear apart the government's case against you because the government is relying on liars and turncoats to prove your guilt. Your attorney looks the jury in the eye and says you hired individuals to shoot the victim, but you did not intend for the victim to be killed. Wait, what?!?

The case is United States v. Rosemond, issued on May 1. The jury found defendant guilty of conspiracy to commit murder-for-hire. Hence, this appeal, claiming the trial lawyer was ineffective in violation of the Sixth Amendment and that he violated the defendant's Sixth Amendment right to autonomy.

The lawyer allows for criminal lawyers some discretion in litigating their cases. It is therefore quite difficult to win ineffective assistance appeals. In addition to that, the Supreme Court in the last term clarified the "right to autonomy" in United States v. McCoy, holding that criminal defendants have the right "to make fundamental choices about [their] defense," including whether to persist in maintaining their innocence "even in the face of overwhelming guilt." So how does all of that play out when a lawyer tells the jury in a contract killing case that his hired people to shoot the victim but not to kill him?

Defendant, a prominent rap music mogul, loses the appeal. On the ineffective assistance of counsel argument, the Second Circuit (Sack, Chin and Bianco) reaffirms that trial lawyers can make strategic choices, including whether to concede an element of the crime. This is "sound trial strategy" when he attorney does not concede his client's guilt. or when there is overwhelming evidence against the client. The same holds true on the right to autonomy, though it is the defendant's prerogative to decide on the objective of his defense. The court holds that "conceding an element of the crime while contesting the other elements falls within the ambit of trial strategy." While defendant and his attorney shared the same objective, acquittal, counsel never conceded his client was guilty of the charged crime. This was a strategic concession. Of course, counsel conceded an important element of the crime, that defendant hired people to shoot the victim. But, the Court of Appeals says, that does not mean counsel conceded that defendant hired people to kill the victim.

The Second Circuit notes that defendant, in support of his motion for a new trial, sad he dd not want his lawyer to tell the jury that he paid to have the victim shot. But he also said in this motion that he would have preferred his counsel tell the jury that he paid for a kidnapping so he could confront the victim face to face. "Had Rosemond asserted his right to autonomy to prevent his attorney from conceding any crime because of the 'opprobrium' that accompanies such an admission, his argument might carry greater weight. It loses its thrust, however, when he picks and chooses which crime he is comfortable conceding."

Democratic presidential primary election will proceed on June 23, 2020

A federal judge has ruled that the State of New York cannot legally remove names from the Democratic primary ballot. Nor can the State legally cancel the primary election scheduled for June 23, 2020.

The case is Yang v. Kellner, issued on May 5. Judge Torres of the Southern District of New York has the case. Plaintiffs filed this lawsuit only last week. Even during a horrible pandemic, the courts will move to restore constitutional values.

On April 3, 2020, the Governor signed into a law a measure that says the Board of Elections may remove from the ballot any presidential primary candidate who either says he is no longer running for president, he is terminating or suspending the campaign, or sends a letter to the BOE stating they no longer wish to appear on the ballot. Under that law, the BOE's Democratic Party commissioners removed from the ballot to 10 Democratic candidates who had qualified to be on the ballot but who had suspended their campaigns or announced they were no longer running for president. These candidates include Elizabeth Warren, Bernie Sanders, and Andrew Yang. Under the state election law, when only one candidate remains on the primary ballot, the primary election is cancelled and the candidate is deemed the winner. That means, under these maneuvers, Joe Biden wins the New York primary.

Yang and his delegates to the primary convention filed this lawsuit challenging the legality of the cancelled primary election. Sanders' delegates have also joined in the lawsuit seeking the same result. They seek a preliminary injunction that would order the state to hold the primary election and allow Yang and other candidates to run against Biden in New York. Judge Torres first holds that plaintiffs will suffer irreparable harm without an immediate court order, as the loss of constitutional rights in the elections context (such as the right to vote for the candidate of your choice) is always irreparable.

Judge Torres also says plaintiffs are likely to win the case on the merits. A preliminary injunction essentially allows you to win the case right after it is filed when you can satisfy that standard. You need close to a slam-dunk to overcome this hurdle. Judge Torres says that, while Yang is no longer running for the Democratic nomination, his delegates may still assert the right of association under the First Amendment because the primary "results in the election of delegates to the [Democratic National] Convention," and removing Yang's name from the ballot deprives them of the opportunity to influence the party platform, vote on party governance issues, pressure the party nominee on policy, "and react to unexpected developments at the Convention." Since Yang and Sanders did not formally withdraw from the race under the procedures that would have taken their names off the primary ballot, plaintiffs continue to have the right to associate with these candidates, even if, let's face it, they will not win the primary or become the Democratic Party nominee.

The State defends this case by arguing that the COVID-19 pandemic creates a public health risk if the primary election proceeds as planned, and that cancelling the primary election will minimize social contact. While Judge Torres agrees this is an important governmental interest, it is not enough to justify cancelling the primary election. Voters can cast a ballot by mail or do so through absentee ballots. And in many localities, other elections are also scheduled for June 23, 2020, including in New York City, and the state has time to implement measures that will prevent the virus from spreading during the balloting process.

What it all means is that the primary election in New York will resume as scheduled on June 23, 2020. Yang and Sanders and eight other Democratic candidates will appear on the ballot.

When must an insurance company provide coverage in an ADA failure-to-accommodate case?

This case involves a dispute between an insurance company and a private entity that was sued for violating the Americans with Disabilities Act. The insurance company would not cover the defense costs, claiming the policy does not protect against intentional acts. This state-law issue is sufficiently complex that the Second Circuit (Pooler, Lynch and Park) is certifying it for review by the New York State Court of Appeals.

The case is Brooklyn Center for Psychotherapy v. Philadelphia Indemnity Insurance Company, decided on April 9. Normally, we recognize that intentional acts are not covered by insurance, only negligent acts, like slip and falls and malpractice. At least, that's the common understanding. In this case, the Brooklyn Center was sued by a hearing-impaired woman who claimed the Center declined to provide psychiatric treatment for her son because the woman needed sign language and other accommodations for her disability. The district court dismissed the case, holding that the insurance policy did not cover acts like this, only negligent acts.

Under state law, an insurer's duty to defend is "exceedingly broad." After all, why else would someone pay their premiums? But insurance policies are also carefully worded. In this case, it said the insurance company would only provide coverage for an "occurrence," defined as an "accident." This is a standard provision in many insurance policies. Under New York law, "damages that are not intended by an insured are considered 'accidental,' and an act causing such unintended damages is considered an 'occurrence.'" But that does not mean that coverage is barred whenever an insured performs an intentional act that ultimately causes damage. "Though an intentional act may ultimately cause certain damages, those damages may, under New York law, be considered 'accidental' if the total situation could be found to constitute an 'accident.'" This may happen when the insured did not expect or intend the harm that was caused.

How does this affect discrimination cases? Did the Brooklyn Center's failure to accommodate the woman's disability constitute an "accident" under the policy? Allegations involving solely disparate treatment are not covered under these insurance policies. But at least one New York court holds that an insurer must defend an insured against disparate impact litigation, where the plaintiff does not have to prove intent to discriminate. There is no guidance in any state court or administrative rulings on whether insurance companies must provide coverage in failure-to-accommodate cases under the ADA. One argument in favor of coverage is that these kinds of cases do not always involve an intent to discriminate. It's a tricky situation. And when the Second Circuit is confronted with a tricky state-law situation for which there is little guidance from the state courts, it certifies the issue to the New York Court of Appeals for a definitive ruling under state law. And that's where this case is going.

Phoenix House placement does not entitle plaintiff to salary under the FLSA

A few years ago, the Second Circuit devised a legal framework guiding when volunteers are entitled to minimum wage and overtime protections under the Fair Labor Standards Act. We call them the Glatt factors, named after Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir 2016). The Court now applies the Glatt factors to any number of factual situations, like this one, involving a man who was assigned work duties while undergoing treatment at a residential drug and alcohol treatment facility. The Court says he was not an employee under the Fair Labor Standards Act and therefore cannot recover fair compensation for his work.

The case is Vaughn v. Phoenix House New York, Inc., decided on April 22. Under the Glatt factors,

“the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” The “primary beneficiary test” has “three salient features:” (1) its “focus[ ] on what the intern receives in exchange for his work,” (2) its “flexibility to [permit] examin[antion] of the economic reality” of the relationship, and (3) its acknowledgement that the intern-employer relationship is subject to unique considerations in light of the intern’s expected “educational or vocational benefits that are not necessarily expected with all forms of employment.” In performing this analysis, we ask the district courts to evaluate a “non-exhaustive set of considerations,” which include: 

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa. 

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions. 

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. 

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar. 

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning. 

6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern. 

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.18We emphasized that “[n]o one factor is dispositive and every factor need not point in the same direction for the court to conclude that the intern is not an employee entitled to the minimum wage.”

Plaintiff loses the case because the factors tilt in favor of the employer. There was no real expectation of compensation, and the program largely provided "beneficial learning." While plaintiff's work complemented and did not displace the work of paid employees, the other factors are sort of a wash. What ultimately loses the case for plaintiff is the sixth factor insofar as plaintiff was not an intern but was serving a placement that provided him with significant benefits: rehabilitation treatment and a place to live, with food and vocational training. This means that plaintiff was not an "employee" under the FLSA and therefore does not get paid for his work at the Phoenix House.